Towards an Ecological Intellectual Property: Reconfiguring Relationships Between People and Plants in Ecuador 9780367429799, 9781003046240

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Towards an Ecological Intellectual Property

This book focusses on analysing how legal systems set the terms for interactions between human beings and plants. The story that the book recounts is one of experimental lawmaking in Ecuador, a country where, over the past decade, governmental officials and civil society advocates have attempted to reconfigure how human individuals and institutions relate to nature by following an “eco-centric” approach to lawmaking. In doing so, Ecuadorian legislators, administrators, and judges have taken seriously the ontologies of non-human entities, including plants, through a process that has required the continuous navigation of tensions with certain “logics” that pervade conventional legal regimes. The book endeavours to disrupt these conventional assumptions and approaches to lawmaking by taking seriously alternative strategies to reconstitute interactions between people and plants. In doing so, the book argues in favour of an “ecological turn” in laws that govern vegetal life. The analysis is based on a close examination of the experiences that lawmakers in Ecuador have had when experimenting with innovative approaches to re-form relationships between human and non-human beings. Concretely, these experiments have yielded constitutional, legislative, and regulatory changes that inform the inquiry of how intellectual property and plant genetic resources laws – both in Ecuador and worldwide – could become more “ecological” in nature. The argument that the book develops is based on extensive ethnographic fieldwork and empirical research in Ecuador, complemented by archival and doctrinal legal analysis. The contents of the book will be of interest to an academic audience of legal scholars and postgraduate students in law, in addition to scholars and students in the fields of anthropology, sociology, socio-legal studies, and science and technology studies. David J Jefferson is a Research Fellow and Member of the Australian Research Council (ARC) Laureate Project Harnessing Intellectual Property to Build Food Security in the TC Beirne School of Law, The University of Queensland, Australia. David holds a PhD in Law from the University of Queensland and a JD from the University of California, Davis.

Routledge Research in Intellectual Property

Available: Intellectual Property Law and Plant Protection Challenges and Developments in Asia Kamalesh Adhikari and David J. Jefferson SEPs, SSOs and FRAND Asian and Global Perspectives on Fostering Innovation in Interconnectivity Edited by Kung-Chung Liu and Reto M. Hilty Towards an Ecological Intellectual Property Reconfiguring Relationships Between People and Plants in Ecuador David J Jefferson For more information about this series, please visit https://www.routledge.com/ Routledge-Research-in-Intellectual-Property/book-series/INTELLPROP

View of Lago San Pablo and surrounds from the summit of Cerro Cusín (4012m), Otavalo region, Ecuador. Photo by the author

Towards an Ecological Intellectual Property

Reconfiguring Relationships Between People and Plants in Ecuador David J Jefferson

First published 2020 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 52 Vanderbilt Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business © 2020 David J Jefferson The right of David J Jefferson to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing-in-Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging-in-Publication Data A catalog record has been requested for this book ISBN: 978-0-367-42979-9 (hbk) ISBN: 978-1-003-04624-0 (ebk) Typeset in Galliard by codeMantra

Contents

Acknowledgements

ix

A note on methodology 3 Structure of the book and chapter summaries 6 PART 1

Conventional approaches to the governance of human-plant interactions

13

1

Taking plants seriously in law 1.1 Challenging the epistemology of plants 18 1.2 Recognising nature as a subject with rights 24 1.3 Eco-centric Ecuador: constitutional protections for Pachamama 28 1.4 Towards an “ecological turn” in law 33

15

2

Turning plants into intellectual property 2.1 Plants as inventions 42 2.2 The emergence of systems for plant breeders’ rights 46 2.3 Alternatives to the plant breeders’ rights model of intellectual property for plants 50

39

vi Contents

3

Universalising an instrumental approach to plants in law 3.1 The contraction of policy space for intellectual property lawmaking 62 3.2 The expansion of UPOV as explained by free trade agreements 65

4

The logic of plant genetic resources 4.1 The end of the common heritage approach 81 4.2 The emergence of the global biodiversity treaties 84 4.3 The instrumental, economic, and proprietary logics of plant genetic resources 90

61

80

PART 2

Experimenting with an eco-centric approach: an Ecuadorian story

97

5

Reconfiguring intellectual property in Ecuador 5.1 The Ingenios Act: intellectual property meets sumak kawsay 100 5.2 The making of the Ingenios Act 103 5.3 The aspirations of the Ingenios Act 106 5.4 The new institutionalism of the Ingenios Act 111 5.5 The Ingenios Act: reimagination or recapitulation? 114

99

6

The Ecuadorian approach to intellectual property for plants 6.1 The reconstitution of the plant variety in the Ingenios Act 129 6.2 The limits of intellectual property for plants in the Ingenios Act 136

7

Alternatives to conventional legal imaginaries for human-plant interactions 7.1 Seed law as an alternative to intellectual property 150 7.2 Traditional knowledge protection as an alternative to intellectual property 159 7.3 Food sovereignty as an alternative to intellectual property 168

126

149

Contents  vii

8

Lessons from the Ecuadorian experiment with an ecological turn in lawmaking 8.1 Pachamama goes to court: adjudicating the rights of nature 177 8.2 What the rights of nature jurisprudence means for plants 181 8.3 Lessons from eco-centric experiments in lawmaking 185 Bibliography Appendix A: Tables Appendix B: Figures Index

176

193 207 219 221

Acknowledgements

This book would not have been possible without the support of my colleagues, friends, and family in Australia, the United States, Ecuador, and many other parts of the world. Foremost, I am grateful for the simultaneous inspiration and grounding provided by my colleagues in the “Harnessing Intellectual Property to Build Food Security” ARC Laureate Project at the University of Queensland. I am especially thankful to Professor Brad Sherman and Dr Susannah Chapman for supervising my dissertation project, on which this book is based. I also greatly appreciate the feedback that I received on different versions of the book manuscript from Dr Chapman, Dr Xan Chacko, and Dr Kamalesh Adhikari. Additionally, I am grateful for the comments provided by the anonymous reviewers of both my dissertation and the proposal for a research monograph that I submitted to Routledge. In addition to my collaborators at the University of Queensland, I am obliged to other colleagues who supported me while I conducted the research on which this book is based. I am especially grateful for the mentorship and the opportunities for professional development provided by Dr Monica Alandete-Saez and Professor Alan Bennett, who were my colleagues and friends during the six years that I spent working at the Public Intellectual Property Resource for Agriculture (PIPR A) of the University of California, Davis. Furthermore, I appreciate the hospitality and the continuous insights that my Ecuadorian community imparted to me. I would especially like to thank my professional contacts and friends Byron Robayo, Jaime Sánchez, Elisabeth Gaibor, Wilson Ursiña, Viktor Aguila, and Hernán Núñez for their support of my research and for tolerating my constant queries. At the institutional level, I am indebted to the Ecuadorian National Agricultural Research Institute, the Ecuadorian Intellectual Property Institute and its successor, the National Service for Intellectual Rights, the Ecuadorian National Assembly, and Yachay. The realisation of the fieldwork on which this book is based was supported by a United States Fulbright Grant (2016), and the period that I spent in Ecuador in 2016 was facilitated by Susana Cabeza de Vaca and other personnel at the Fulbright Commission in Quito. I also benefitted from an International Postgraduate Research Scholarship (2015–2019), a Centennial Scholarship (2015–2019), and a Candidate Development Award (2018) from the University of Queensland,

x Acknowledgements and from a postdoctoral fellowship provided by the ARC Laureate Project “Harnessing Intellectual Property to Build Food Security.” The completion of this monograph would have been impossible without these financial supports. Finally, I want to recognise the love and support of my family, without which I would have had little motivation to undertake this project. I am grateful especially to my wife, Erin Wilkus; my parents, Pat Reddy and Jim Jefferson; my stepmother, Donna Mervine Jefferson; my parents-in-law, Kate Greenberg and Stephen Wilkus; and my siblings and their partners: Sarah Jefferson, Zach Klinger, Sara Hromadka Klinger, Sophia Wilkus, and Julius McGee. Thank you all for accepting my wanderings, whether they occur in the mountains or in writing.

Introduction

If upon encountering a plant, we fail to be impressed with the exuberance of its growth and uncontrollable efflorescence, this is because its current conceptual framing is the outcome of a long history that discarded and invalidated numerous interpretative possibilities for our relation to ‘flora.’1

This is a book about “making strange”2 an area of law that is rarely subjected to radical critical scrutiny. The focus of the analysis is on how legal systems govern interactions between human beings and plants. The story that this book recounts is one of experimental lawmaking in Ecuador, a country where over the past decade, governmental officials and civil society advocates have attempted to reconstitute how human individuals and institutions relate to nature, by following what I term an “eco-centric” approach to lawmaking. In doing so, Ecuadorian legislators, administrators, and judges have taken seriously the ontologies of non-human entities, including plants, through a process that has required the continuous navigation of tensions with the assumptions inherent in conventional legal regimes. The story of experimental lawmaking in Ecuador has unfolded at a time in history when the ways of relating to nature that global industrial capitalism has enabled and promoted are increasingly being questioned. The idea that the planet has entered into a so-called Anthropocene era in which human activities have themselves become significant geological forces,3 resulting in climate change and the threat of a new mass extinction,4 is provoking anxiety at the individual level and collective social unrest. Simultaneously, there is growing acknowledgement in numerous academic and scientific disciplines that people in industrialised capitalist societies suffer from “plant blindness,”5 characterised as “an inability to visually and conceptually distinguish and interpret a botanical world that has been stripped of meaning.”6 The law acts as both a mirror and a catalyst for this plant blindness. The legal systems that today predominate worldwide conceive of vegetal life either as a “green ‘background to human activity’”7 or as an object of human use and exploitation. In other words, the law follows a fundamentally instrumental approach to the governance of interactions between people and plants. This way of thinking – and way of “seeing” the ecosystems that vegetal life forms inhabit – is epitomised in two types of laws. The most prominent of these are frameworks

2 Introduction that enable intellectual property to be obtained for new varieties of plants, a type of regime that will constitute the primary focus of this book. However, a second category of legal systems, namely those that regulate human utilisation of “plant genetic resources,” also instantiate the instrumental rationality, even though they have sometimes been conceived of as the anthesis of intellectual property. Current legal scholarship, legislative and regulatory action, and civil society discourse related to these two types of laws tend to reinscribe a series of imagined dichotomies, including nature/culture, subject/ object, private property/public domain, wild/cultivated plants, and owner/user of property. These binaries, in turn, feed a set of assumptions that have come to dominate the way that many people think about how the law should order relationships between human and vegetal beings. The “logic” – understood here as a set of conventions that characterise a given area of law – that undergirds intellectual property systems and other common legal frameworks presupposes an instrumental relationship between people and plants, such that vegetal life is positioned as a resource to be mined and developed to fulfil human purposes. The dominance of this rationalist and utilitarian logic is evinced in legal systems worldwide, including especially those which regulate intellectual property for plants. With few exceptions, these regimes centre exclusively on recognising proprietary, private legal rights for people who develop new varieties of plants – that is, plant breeders. The result of this process of genetic “improvement” is understood to be the production of technologies conceived according to the rationality of “invention,” which are destined for commercial exploitation. Similarly, one of the primary purposes of laws concerned with the governance of plant genetic resources is to regulate “bioprospecting.” This is essentially a “new name for an old practice,” characterised by the extraction of plants and other non-human life forms (e.g. microbes), in addition to associated Indigenous or traditional knowledge, from “the ‘biodiversity-rich’ regions of the globe” towards the end of developing commercial products such as pharmaceuticals, nutraceuticals, cosmetics, or new crop varieties.8 Here again, an instrumental or utilitarian conception of plants is evident. Although legal systems that govern bioprospecting are usually also interested in biodiversity conservation, the rationale behind this objective is to ensure the future availability of particular plant materials for human use. This book endeavours to sever these conventional assumptions and approaches to lawmaking by taking seriously alternative logics based on which interactions between people and plants might be reordered. In so doing, the book argues in favour of an “ecological turn” in laws that govern vegetal life. The analysis is based on a close examination of the experiences that lawmakers in Ecuador have had when experimenting with innovative approaches to reconstitute relationships between human and non-human beings that share common environments. Concretely, these experiments have yielded constitutional, legislative, and regulatory reforms that inform the inquiry of how the law – both in Ecuador specifically and as a generalised, global construct – could become more ecological in nature.

Introduction  3 It is important to note that this book does not conceive of its analysis of Ecuadorian lawmaking as a case study. Rather, the chapters that follow interpret what has occurred in Ecuador as a kind of legal revolution, albeit one that has been circumscribed, constrained, and contested by many factors, as various sections of the book will describe. Ecuador is more than merely a case study because no other country in the world has gone further to reimagine how the law should administer human interactions with vegetal life, or indeed with the biosphere as a whole. There is no better place to seed the roots of an eco-centric turn in lawmaking, a project that this book aspires to initiate. Furthermore, the Ecuadorian story is significant because it demonstrates a genuine effort by lawmakers to break – at least partially – away from the rationalist and utilitarian logic that dominates the governance of human-plant interactions by codifying concepts borrowed from subaltern cosmologies. Of particular relevance is the Indigenous Andean notion of “Pachamama” or Mother Nature, which the new Constitution, enacted in 2008, recognised as a subject of rights. Over the past decade, this radical reform has influenced the making of a series of sub-constitutional legal frameworks, including a new law that mediates humanplant relationships through intellectual property. As later chapters of this book will discuss, the translation of Indigenous understandings of how human beings should relate to Pachamama into formal doctrine has sometimes been fraught. Nevertheless, the concrete legal changes that have resulted from this process merit global recognition for the novel approach to statist policy formation that they represent.

A note on methodology In this book, I develop a narrative of Ecuadorian experimentation in lawmaking based on fieldwork that I conducted mostly in Quito, the capital of Ecuador and seat of the country’s government, for a total of approximately nine months, including the period from January to August 2016, in addition to October 2018. However, my engagement with Ecuadorian institutions in general and with the reform of the national intellectual property system in particular began in 2013, when, as a lawyer working with the non-profit organisation The Public Intellectual Property Resource for Agriculture, I participated in a two-year project in collaboration with the Ecuadorian National Institute for Agricultural Research. I visited Ecuador twice during this period, in October 2013 and April 2014, and assisted officials in the National Institute for Agricultural Research to develop an internal intellectual property policy. It was during these visits when I first learned of the proposal to remake the national intellectual property system. At that time, the draft legislation that would comprehensively reform the national intellectual property system – referred to in this book by reference to its popular name, the “Ingenios Act” 9 – was being conceived at the Ecuadorian Intellectual Property Institute, and early drafts of the Bill were made public soon thereafter. During my fieldwork in 2016 and 2018, I conducted semi-structured interviews in Spanish with approximately 40 individuals who had close connections

4 Introduction to the Ingenios project. Interviewees included elected representatives to the National Assembly, directors and senior officials of governmental agencies – including the Ecuadorian Intellectual Property Institute and the Ministry of Higher Education, Science, Technology and Innovation – in addition to attorneys employed in the private sector, industry representatives, foreign diplomats, entrepreneurs, academic researchers and scientists, journalists, and leaders of civil society organisations that represented Indigenous and rural communities. I conducted multiple interviews with some of these individuals. Particularly helpful contacts included a former director of the Ecuadorian Intellectual Property Institute and other senior officials from the Institute (which later became the National Service for Intellectual Rights), who collectively were responsible for overseeing the development of drafts of the Ingenios Bill before the text was formally submitted to the National Assembly in June 2015. In addition to these interviews, I had numerous informal conversations with actors involved in the making of the Ingenios Act and other national policies related to the governance of human-plant interactions, which included a Bill for Agrobiodiversity, Seeds, and the Promotion of Sustainable Agriculture and a proposal in the National Assembly for Ecuador to ratify the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (the “Nagoya Protocol”). These dialogues occurred during frequent visits to the offices of governmental agencies, including the Ecuadorian Intellectual Property Institute/ the National Service for Intellectual Rights; the Ministry of Higher Education, Science, Technology and Innovation; the National Institute for Agricultural Research; the Ministry of Agriculture; and Yachay. The latter institution was founded in 2014, but it expanded substantially over the course of my fieldwork, growing to fit its designation as the national “City of Knowledge.” The purpose of Yachay was to operate as a government-sponsored hub for technological innovation and knowledge-intensive business development, including in the agriculture and food sectors. While living in Quito in 2016, I frequently travelled to the Yachay campus in Urcuquí, Imbabura, where I acted as a volunteer advisor for the Directorate of Intellectual Property and Technology Transfer. My fieldwork in Ecuador also included participation in numerous events in Quito and Urcuquí related to the formation of the Ingenios Act and other policies that were designed to set the terms for relationships between people and plants. These included debates about the Ingenios Bill that were hosted by private sector entities (e.g. companies and law firms) and the public academic sector; conferences on issues related to intellectual property, agriculture, food security, and food sovereignty; and “pre-legislative consultations” with civil society leaders who represented Indigenous and other Local Peoples10 in the National Assembly. Officials from the Ecuadorian Intellectual Property Institute were also present at many of these events, ostensibly to take the views expressed into consideration for the purposes of revising the text of the Ingenios Bill, which the National Assembly was considering throughout 2016 and would enact in

Introduction  5 December of that year. I regularly sat with these officials and spoke with them about the proposed revisions to the Ingenios text. The theoretical framework of participant-observation informed the fieldwork that I conducted in Ecuador. This methodology involves immersion in a particular setting and interaction with social actors towards the end of “document[ing] ‘practices,’ those moments when belief and action come together.”11 As a participant-observer in Ecuadorian governmental, academic, and civil society institutions, I was interested to investigate practices related to the making of legal systems whose purpose would be to regulate human-plant encounters, particularly within the parameters of intellectual property law. More specifically, I wanted to witness instances in which people who were involved in the policymaking process made decisions about the form that intellectual property for plants and other legal regimes would take. I sought to document how these individuals theoretically and textually reconciled a variety of external and internal conceptual and pragmatic influences and pressures that surrounded the making of new legislative and regulatory frameworks. I also tried to identify, understand, and record the assumptions that Ecuadorian officials alternately rejected and embraced when thinking about intellectual property for plants and other legal systems whose purpose is to govern interactions between human and vegetal life forms. Anthropologists generally accept the idea that there is no absolute correct way to balance participation and observation in ethnographic research.12 Consistent with this notion, my fieldwork involved continuous navigation of a continuum between proximity and distance. The conversations that I had in government offices and legislative chambers in Quito and Urcuquí oscillated between articulations of abstract concepts and concrete exercises. Thus, lawmakers and bureaucrats were interested in my opinion about both the theoretical aspects of intellectual property for plants, and whether the proposed text of the Ingenios Bill would meet the technical standards that international agreements mandated, including those contained in the Agreement on Trade-Related Aspects of Intellectual Property (the “TRIPS Agreement”) of the World Trade Organization, and the International Convention for the Protection of New Varieties of Plants (the “UPOV Convention”) (both of these regimes are analysed in Chapter 3 of this book). On other occasions, I was consulted about the international access and benefit sharing system envisaged in what I term the “global biodiversity treaties” (reviewed in Chapter 4), and the feasibility of applying the model embodied in the Nagoya Protocol to the Ecuadorian context. These discussions provided opportunities for me to reflect on the instrumental approach that the law generally has taken to structuring human-plant encounters, and how legal systems might be expanded to accommodate alternative standards. In so doing, I contemplated several questions, which I discussed with interviewees and which I will address throughout Chapters 5–7. Relevant queries included: why did the national intellectual property framework need to be remade to actualise the new social and economic objectives that the government aimed to achieve? What were the limitations of intellectual

6 Introduction property as conceived in the then-current Intellectual Property Law of 1998? Why did lawmakers believe that enacting a law whose central purpose would be to protect certain kinds of plant-objects as intellectual property was the optimal way to accomplish their goals, given the doubts that these actors expressed about the 1998 Law? Finally, and returning to the central theme of this book, did the Ingenios system of intellectual property for plants diverge from the standard, instrumental and utilitarian way of thinking about how to order interactions between human beings and plants? If so, how did the officials responsible for drafting the law envisage and enact this change? By analysing the successes and failures of the Ecuadorian experiment in lawmaking, the book outlines how the law might enact an ecological turn, a transformation that would require several basic shifts. The first is that intellectual property law – and indeed, the law in general – would need to take plants seriously and, more broadly, reconstitute the fundamental meaning and position of the biosphere in legal systems. Doing so would necessarily imply moving beyond the current, instrumental and utilitarian approach to the governance of vegetal life, even though contemporary jurisprudence overwhelmingly conceptualises plants merely as resources that are available for human exploitation. The second shift that the ecological turn would require is to recognise the special nature of vegetal life in legal systems. Doing so would necessitate, in at least some circumstances, actively taking the side of the plant and working for the sake of the plant.13 I argue that taking vegetal life seriously in law, legislating and regulating for the sake of vegetal beings independent of their utility in human lifeworlds, would not automatically imply removing plants from the ambit of contemporary regimes for intellectual property protection or biodiversity governance. Instead, the ecological turn would compel the imagination and implementation of alternative approaches to mediating human-plant interactions. This shift would surpass the instrumental and utilitarian way of thinking and transcend the logics of commodification and ownership.

Structure of the book and chapter summaries This book considers how the law might undertake an ecological turn by reconfiguring how human beings interact with the biosphere, and particularly with vegetal life forms. The story is based on a series of experiments in lawmaking and the development of jurisprudence related to the rights of Pachamama, shifts that have occurred in Ecuador over the course of the past decade. The book is divided into two parts. The first, which comprises Chapters 1–4, critically evaluates the dominant contemporary approach to the governance of human-plant relationships. The second part, encompassing Chapters 5–8, analyses the Ecuadorian strategy and draws lessons from the experience that the country has had with innovative lawmaking. Chapter 1, entitled “Taking Plants Seriously in Law,” establishes the conceptual framework of the book by arguing that post-Enlightenment science and philosophy have generally conceived of plants as passive objects. This way of

Introduction  7 thinking has justified and enabled the instrumental approach to the governance of vegetal life in law, which today predominates. However, the chapter also describes how the assumption that plants are inert objects is being rethought in nascent scientific and philosophical movements, underscoring the need to reimagine the regulation of human-plant interactions in law. Chapter 1 demonstrates that some countries have begun to effect this ecological transformation by enacting legal frameworks that recognise “nature” as a person or subject with rights. Ecuador represents the paradigmatic example of this trend because it is the only country in the world that has enshrined the rights of nature in its national Constitution. The final part of Chapter 1 explores how and why this process unfolded, while elaborating what the rights of Pachamama mean in the Ecuadorian context. Chapter 2, entitled “Turning Plants into Intellectual Property,” begins by illustrating the diverse ways that human and vegetal lives interrelate in Ecuador. In this context, one important consideration is how Indigenous and other Local Peoples, including “campesinos”14 – understood as peasants or rural folk  – practise agriculture in a “uniquely vertical” landscape. The chapter describes how certain Indigenous cosmologies that remain vital in Ecuador today conceive of vegetal life. Notably, although Ecuadorian rural peoples rely on the utilisation of plants to fulfil diverse human purposes, many of these cultural groups understand human and non-human life forms as coequal participants in shared lifeworlds. These ways of thinking contrast with how, starting in the late nineteenth century, agriculture and food production began to be reconfigured through industrialisation and subjected to capitalism in places such as North America and Europe. Chapter 2 further describes how plants came to be conceived as inventions, and, according to this logic, how the first laws that extended intellectual property to allow for the privatisation of particular plant varieties were developed in North America and Europe. By the end of the twentieth century, the most common approach to the administration of plants as intellectual property was embodied in systems that grant “plant breeders’ rights,” which are typified by the UPOV Convention. After unpacking this treaty regime, Chapter 2 concludes by discussing alternatives to the plant breeders’ rights model of intellectual property for plants, which some countries have developed as a means to accomplish diverse policy goals. Chapter 3, entitled “Universalising an Instrumental Approach to Plants in Law,” depicts how the formalisation of harmonised, international intellectual property norms for plants became a growing matter of concern for certain commercial interests beginning in the 1980s. The chapter explains how landmark international agreements, including the UPOV Convention and the TRIPS Agreement operated to consolidate and extend the instrumental approach to the governance of vegetal life. Today, the majority of countries in the world have become “legally bound” to uphold these and other treaty obligations that require the regulation of plants according to the logic of intellectual property. Furthermore, as Chapter 3 explains, the UPOV Convention model of plant breeders’ rights has been effectively “universalised” through the terms of free

8 Introduction trade agreements, which generally require signatories to join UPOV. In Ecuador, the universalisation of the instrumental approach has directly affected lawmaking, including the reform to the national system of intellectual property for plants. This is because Ecuador has become legally bound to several international agreements that are pertinent to the rendering of vegetal life as intellectual property, including the TRIPS Agreement, the UPOV Convention, and a recently signed free trade agreement with the European Union. Chapter 4, entitled “The Logic of Plant Genetic Resources,” argues that the instrumental approach to ordering human-plant interactions in law is not only contained in intellectual property laws but also embodied in global frameworks whose aims include the promotion and conservation of biodiversity. Historically, this phenomenon gained visibility through the conceptualisation of “plant genetic resources,” a notion that indicated the importance of plants to humans as the fundamental inputs of plant breeding and the potential and actual exchange value that plants represent for an increasingly consolidated agricultural industry. The chapter describes how the concept of plant genetic resources has been embedded in a series of global biodiversity treaties, including the Convention on Biological Diversity (the “CBD”), the Nagoya Protocol, and the International Treaty on Plant Genetic Resources for Food and Agriculture (the “Plant Treaty”). Chapter 4 contends that the plant genetic resources notion relies on fundamentally economic and proprietary logics, and in this way, the global biodiversity treaties and intellectual property laws alike tend to promote an analogous way of thinking about the governance of human-plant interactions. Similar to the international intellectual property agreements described in Chapter 3, many countries, including Ecuador, have become legally bound to the global biodiversity treaties. In many instances, these legal obligations may be in tension with other commitments that countries have assumed under international commercial agreements, including those which set minimum standards for intellectual property protection. This is the case in Ecuador because the country has adhered to the CBD, the Nagoya Protocol, and the Plant Treaty. Chapter 5, entitled “Reconfiguring Intellectual Property in Ecuador,” commences the analysis of eco-centric lawmaking in Ecuador. The chapter begins by scrutinising the constitutional conception of “sumak kawsay” or “buen vivir,” notions that were meant to embody a way of living that is fundamentally ecologically balanced and focussed on engendering mutually supportive contacts between different individual people and social groups, and between these and non-human entities. Chapter 5 explores why and how sumak kawsay formed the conceptual underpinning of the project to remake the national system of intellectual property in Ecuador. Furthermore, the chapter outlines the major aims that the new law – known colloquially as the Ingenios Act – sought to achieve, and how the initiative endeavoured to establish a new “institutionalism” for intellectual property governance. Finally, Chapter 5 considers whether the Ingenios Act truly aspired to reimagine intellectual property, or if the law was actually designed to be “disruptive, but not rupturist.”

Introduction  9 Chapter 6, entitled “The Ecuadorian Approach to Intellectual Property for Plants,” analyses how the Ingenios Act sought to reconstitute the notion of the “plant variety” in a way that would take into account the interests of different human uses of plants in Ecuador. The chapter explores how Ecuadorian policymakers experimented with different strategies to render the plant variety concept in a way that would be better suited to the diverse ways through which agriculture is practised in the country. In some instances, these approaches occurred at the level of legislation – reminiscent of the alternatives to the UPOV Convention that other countries have adopted – while on other occasions innovation occurred in the regulatory realm. Thus, Chapter 6 conducts a thorough doctrinal investigation of the Ingenios Act system of intellectual property for plants, comparing the new law with national and international precedents, and considering whether and how constitutional concepts, including sumak kawsay and the rights of nature, affected the provisions that the regime ultimately established. Chapter 7, entitled “Alternatives to Conventional Legal Imaginaries for Human-Plant Interactions,” scrutinises whether recently enacted Ecuadorian regimes outside of the realm of intellectual property could reconstitute the governance of relationships between people and plants. The laws that are reviewed in this chapter include a new framework for agrobiodiversity, seeds, and the promotion of sustainable agriculture; the system of protection for Indigenous and traditional knowledge that the Ingenios Act created; and the national food sovereignty regime. The overarching inquiry of Chapter 7 is: has Ecuador managed to reconstitute human-plant interactions in recent legislative and regulatory initiatives that do not rely on an expressly proprietary logic? The chapter argues that, although in some ways the governance of vegetal life has been reimagined through these innovative frameworks, the Ecuadorian experience demonstrates that it is not easy to transcend anthropocentrism in lawmaking. Finally, Chapter 8, entitled “Lessons from the Ecuadorian Experiment with an Ecological Turn in Lawmaking,” contends that although the recent legislative and regulatory experimentation that the country has undertaken tends to reproduce anthropocentrism, the Ecuadorian story could still provide inspiration for future efforts to take vegetal life seriously in law. The most convincing reason for why Ecuador represents an important model to follow is found in the constitutional recognition of Pachamama as a legal person and subject of rights. To substantiate this argument, Chapter 8 explores how Ecuadorian courts have interpreted the new constitutional provisions over the course of the past decade, resulting in the development of an emergent rights of nature jurisprudence. The chapter focusses particularly on one case, which unified several of the issues that are analysed throughout this book. The controversy centred on the cultivation of transgenic soybeans, which was ruled to be a violation of the Ecuadorian constitutional protections for Pachamama. After reviewing the judicial interpretations of the rights of nature, Chapter 8 concludes by extrapolating lessons from the Ecuadorian experiment in lawmaking. A key observation is that even where eco-centrism is an explicit goal, it may be unlikely that legislators and governmental officials will effectively take plants

10 Introduction seriously as subjects of rights rather than merely objects of human use. One explanation for this limitation is that it is difficult to remove anthropocentric concerns from the legal regulation of non-human life. The Ecuadorian story demonstrates that even where people try to take into consideration the ethical treatment of vegetal life and other elements of the biosphere, it remains exceedingly challenging for us to assume the perspective of or empathise with nonhuman others, and to translate this way of thinking into concrete legal provisions. Nevertheless, the Ecuadorian experiment with eco-centric lawmaking provides an interesting and significant precedent on which to reflect, and a source of inspiration for future efforts to take plants seriously in law. This is because, by recognising the rights of nature in its national Constitution, the Ecuadorian legal system at its highest level has moved beyond the conventional subject/ object binary that today characterises most laws of all kinds throughout the world. Furthermore, by conceptualising nature as Pachamama, the Ecuadorian Constitution genuinely aspired to realise its goal of “plurinationality.” In doing so, the country has demonstrated that it is possible to elevate Indigenous cosmologies so that they inform – and potentially help to reimagine – rationalist laws, which could motivate Ecuador and other countries to transcend the instrumental approach to the governance of vegetal life. The hope is that these trends will continue to advance both within and outside of the borders of Ecuador, and that others will endeavour to make the law strange to render it more just, for human and non-human beings coequally.

Notes 1 Marder, M. (2013). Plant-thinking: A Philosophy of Vegetal Life. New York: Columbia University Press. p. 128. 2 I invoke the concept of ostranenie, translated from Russian as estrangement, defamiliarisation, or making strange that Victor Shklovsky coined to describe a theory of art, and that Bertolt Brecht invoked in the context of acting and Darko Suvin employed to define science fiction. Making the law strange can provide “a way to unpack and explore both the mythological and theological structures of law that we cannot always approach directly because we are…habitualised or autonomised to them.” Peters, T. D. P. (2014). Reading the Law Made Strange: A Theological Jurisprudence of Popular Culture. PhD Diss. Griffith Law School. p. 36. 3 Crutzen, P. J. (2006). The “Anthropocene.” In E. Ehlers & T. Krafft (Eds.) Earth System Science in the Anthropocene (pp. 13–18). Berlin, Germany: Springer. 4 Kolbert, E. (2014). The Sixth Extinction: An Unnatural History. London, UK: Bloomsbury. 5 Wandersee, J. H. & Schussler, E. E. (2001). Toward a Theory of Plant Blindness. Plant Science Bulletin, 47 (1), 2–8. 6 Lewis-Jones, K. E. (2016). Introduction: People and Plants. Environment and Society: Advances in Research, 7 (2016), 1–7: 1. 7 Id. 8 Hayden, C. (2003). When Nature Goes Public: The Making and Unmaking of Bioprospecting in Mexico. Princeton, NJ: Princeton University Press. p. 1. 9 The full title of the law is the Organic Code for the Social Economy of Knowledge, Creativity and Innovation (Código Orgánico de la Economía Social de los Conocimientos, Creatividad e Innovación), but the initiative was popularly known as the “Código

Introduction  11

10

11 12 13 14

Ingenios,” which may be translated as the “Ingenuity Act” or the “Inventiveness Act” in English. However, this book will retain part of the Spanish formulation, referring to the law as the “Ingenios Act.” In this book, I use the term “other Local Peoples” to refer to Ecuadorian peoples who are not officially recognised as “Indigenous,” but who nevertheless claim an ethnic identity distinct from the majority “mestizo” population of mixed but predominately European ancestry. Thus, Ecuadorian Local Peoples include the Montubios, an ethnic group of mixed European, Native American, and African ancestry who primarily live in the coastal region of the country, and the Afro-Ecuadorians, who trace their ancestry to enslaved people brought from Africa during Spanish colonisation and who contemporarily reside primarily in the Esmeraldas province. I also use the term Local Peoples to refer to campesino or peasant communities who do not otherwise identify as Indigenous or part of a particular ethnic group. Luker, K. (2008). “Field (and Other) Methods.” In K. Luker (Ed.) Salsa Dancing into the Social Sciences: Research in an Age of Info-Glut. Cambridge, MA: Harvard University Press. p. 158. Musante, K. (2014). Participant Observation. In H. R. Bernard & C. C. Gravlee (Eds.) Handbook of Methods in Cultural Anthropology. Lanham, MD: Rowman & Littlefield. p. 262. Marder, supra note 1 at 181. In the context of Ecuadorian agriculture, the term campesino can be most accurately translated as peasant or rural folk. However, in this book, I use the word campesino to refer to peasant and non-peasant smallholder farmers alike.

Part 1

Conventional approaches to the governance of human-plant interactions

1

Taking plants seriously in law

On the 6th of June 2008, 130 democratically elected delegates convened in Montecristi, a small city in the humid Pacific coast region of Ecuador. The meeting place had been chosen because Montecristi was the birthplace of Eloy Alfaro, the president of Ecuador from 1895 to 1901 and leader of the Ecuadorian Liberal Revolution. In this capacity, Alfaro had championed the making of a new Constitution in 1906, which for the first time recognised certain civil and political rights, such as freedom of expression and association. Although a century later Montecristi was better known for its namesake straw hats, its selection as the site of the “Constituent Assembly” was symbolic. Assembly delegates had travelled from all over the country, converging on this tropical town to again remake the Constitution, and in doing so instate new rights and responsibilities for all Ecuadorians. Although the delegates to the Constituent Assembly had already been meeting since November of the previous year, the 6th of June 2008 was a special day. The date marked the realisation of the first formal debate over a series of draft constitutional provisions that proposed to grant legal rights to non-human entities, conceived broadly as Pachamama. The prospective reform was based on an official acknowledgement that the former, Constitution of Ecuador of 1998, understood nature only in anthropocentric terms, as a legal object that had been rendered capable of appropriation and privatisation. In contrast, the delegates to the Constituent Assembly were grappling with how to implement a different paradigm, which would conceptualise Pachamama as a subject of rights, endowed with an independent legal personality. In this way, human rights and the rights of nature would be necessarily interlinked and counterbalanced by one another, requiring a careful, case-by-case weighing of potential benefits and harms to all beings, both human and non-human, involved in a given situation. The Ecuadorian Constituent Assembly was not the first venue in which the idea of extending legal rights to the biosphere was considered. As will be discussed later in this chapter, by 2008 the rights of nature concept had already been incorporated into the laws of other countries, most notably the United States of America. However, the Ecuadorian experience is significant because it represented the first time that Pachamama – understood here as the environment in which “life is realised and reproduced”1 – was granted rights in the

16  Governance of human-plant interactions foundational legal framework of a country, in parity with the rights of human beings. Indeed, as of 2019, Ecuador remained the only State in the world to have recognised the rights of nature in its national Constitution. The constitutional embodiment of the rights of Pachamama in Ecuador did not occur in isolation. Instead, this development was part of a broader series of reforms, the purpose of which was to reimagine relationships between human and non-human, living and non-living beings, and the environments where all of these entities interact. The new system was intended to have profound implications for all facets of Ecuadorian society, including the association of the State with its citizens, the model for the national economy, and the interaction between people and the ecosystems of which they form part. Within this framework, everything was supposed to revolve around the concept of “buen vivir,” or “sumak kawsay” in Kichwa, the most widely spoken Indigenous language in Ecuador. Delegates to the Constituent Assembly construed sumak kawsay as the embodiment of a way of living that is fundamentally community-centric, ecologically balanced, and culturally sensitive, and focussed on engendering mutually supportive contacts between different individual people and human groups, and with non-human beings.2 The rationalist and utilitarian logic that today dominates legal systems worldwide tends to focus on individuated human relations. In contrast, sumak kawsay represents an alternative conceptualisation of linkages between different legal persons, both human and non-human. The constitutional recognition of this concept was meant to open up new ways of thinking about how the law should order interactions between the different types of beings, including people and plants, which collectively comprise Pachamama. By embedding sumak kawsay in the 2008 Constitution, the delegates to the Constituent Assembly attempted to amalgamate a legal system that was inherited from European colonial processes and institutions with local Indigenous cosmologies and customary laws. Doing so was supposed to inaugurate a new era of plurinationality, wherein the unitary sovereignty of the nation-state would be decentralised, and in which diverse communities of actors would be empowered to pursue their own visions of an ideal society. Later chapters in this book will demonstrate that the eco-centric lawmaking experiment that Ecuador formalised in 2008 with the enactment of its new Constitution has not always unfolded seamlessly. In many instances, the process of law reform in legislative, regulatory, and judicial domains has been fraught and contested. The Ecuadorian instantiation of the rights of nature concept has sometimes been subordinated to other goals, rendered vacuous by countervailing political priorities, or interpreted in ways that undermine the original aims of the Constituent Assembly. Nevertheless, the Ecuadorian story is imbued with nuances that can help us to understand how relationships between human and non-human beings can be reconfigured in law. One of the overarching claims that this book makes is that the rights of nature can serve as a basis for the reimagination of how specific areas of law shape

Taking plants seriously in law  17 interactions between humans and non-humans, with a particular focus on systems of intellectual property for plants. However, before proceeding, it is important to acknowledge that certain conceptual and pragmatic tensions underlie this argument. Foremost, the scope of laws that grant rights to nature – both in Ecuador and in other jurisdictions – is substantially broader than that of regimes whose purpose is to mediate interactions between people and plants specifically. In practice, the Ecuadorian model of granting rights to Pachamama involved extending legal personality to all living beings in the “natural” (i.e. non-human built) environment, including plants, animals, and other kinds of organisms, as well as non-living elements, such as rivers, lakes, or mountains. This means that although the rights of nature constitute an expansive legal construct, the recognition of these rights is consonant with, and logically encompasses, the treatment of plants specifically as legal subjects with rights. A second tension with which this book must grapple is how the law deals with individual entities on the one hand and collectives on the other hand. As mentioned earlier, contemporary legal systems generally follow a rationalist and utilitarian logic that focusses narrowly on individuated human relations. Thus, even where the law recognises the legal personality of collective, non-human agents – such as nation-states or corporations – these are presumed to act singularly, as unified wholes. Although the rights of nature as a juridical concept are still relatively new, these have been understood analogously in early interpretations. Both in Ecuador and in other countries, the law has tended to recognise the rights of particular elements of nature, such as a river, or a forest. However, vegetal life is not always amenable to such individuation. Instead, plants invite the law to engage in a different way of thinking about relationality – one that is decentralised, distributed, collective, and cooperative. As legal persons, plants should be conceived as “pas de tête,” 3 literally headless, without a singular locus of being, and thus in need of a different kind of subjectivity in law. Before exploring these two tensions in detail, and prior to unravelling the recent history of lawmaking in Ecuador, it will be important to lay the conceptual and doctrinal foundations of the contention that intellectual property law and other legal systems can be reconfigured to account for the subjectivity of non-human actors, and particularly plants. Thus, the remainder of this chapter will explore the nature of vegetal life, presenting an argument for why the law should take plants seriously as beings deserving of legal recognition and protection. Furthermore, the chapter will substantiate the meaning of the rights of nature, by demonstrating how several jurisdictions, including Ecuador, have incorporated this concept into different types of laws. The chapter will conclude by contending that laws which govern plants as intellectual property or genetic resources should draw inspiration from the legal recognition of the rights of nature. This could be accomplished through an ecological turn, thereby reimagining how the law conceives of and sets the terms for relationships between people and plants.

18  Governance of human-plant interactions

1.1 Challenging the epistemology of plants Starting at least during the time of the Enlightenment, rationalist science and philosophy have predominantly conceived of plants as passive objects. Any distinguishing characteristics that plants possess have been understood merely as functionalist and mechanistic adaptations to the environment. This way of thinking about vegetal life was coherent with and pragmatically facilitated social and political goals that emerged during the Enlightenment period, which were intertwined with projects of colonial expansion and exploitation, and of scientific description and categorisation of the environment. During this era, certain aspects of classical philosophy were re-claimed and elevated, giving new prominence to obscure passages such as Aristotle’s claim that “without sharing in locomotion or in perception,” plants only “seem to live.”4 Although today, few people would fail to recognise that plants are living entities, instrumental ways of thinking about vegetal life remain dominant in many disciplines, including the biological sciences and the law. This is the case even though nineteenth-century naturalists were already making empirical observations that suggested a more complex ontology of plant life. One example is found in the work of Charles Darwin, who in 1865 published the first of a series of essays reporting experiments that he had conducted on plant growth. In On the Movements and Habits of Climbing Plants, Darwin explained that he became interested in the subject of plant mobility after reading an 1858 paper by Professor Asa Gray, which itself was preceded by works that other early investigators, including Ludwig H. Palm, Hugo von Mohl, and Henri Dutrochet, had authored. Together, these studies were significant because they suggested that the growth of plants in response to environmental stimuli might represent behavioural responses, rather than simple mechanical actions. In his experiments on mobility, Darwin focussed on climbing plants, which he divided into three classes that included hook-climbers, root-climbers, and spiral twiners. He observed that rather than being rare, “there are in all quarters of the world so many climbing plants belonging to so many different orders.”5 Indeed, Darwin’s findings led him to conclude that nearly every organism in Kingdom Plantae would likely have the capacity for the kind of movement that he had observed. Reacting to what in his view appeared to be revolutionary results, Darwin suggested that the historical distinction between plants and animals on the basis of movement needed to be rethought. It has often been vaguely asserted that plants are distinguished from animals by not having the power of movement. It should rather be said that plants acquire and display this power only when it is of some advantage to them.6 In other words, although plant movement occurs on a different, slower time scale than that of animals, it is motivated by similar drives, an observation that reinforced Darwin’s hypothesis that all life shares common ancestry.

Taking plants seriously in law  19 Darwin continued his experiments on plant movement for the next two decades, during which time he focussed especially on the radicle. This is the first part of a seedling to emerge from the seed during the process of germination, which develops into the primary root of the plant. Working with numerous vegetal species, Darwin was fascinated by the common tendency of the radicle to drive the future growth of the organism, such that it appeared to possess diverse kinds of sensitiveness. It is hardly an exaggeration to say that the tip of the radicle thus endowed, and having the power of directing the movements of the adjoining parts, acts like the brain of one of the lower animals; the brain being seated within the anterior end of the body, receiving impressions from the sense-organs, and directing the several movements.7 Darwin thus posited that plants are like upside-down animals, with their behavioural control centres situated at the anatomical base rather than the top of the head. This quality appeared to provide evidence to support his theory of evolution. That is, as sessile beings, it is logical that plants would develop adaptations that would allow them to more efficiently and effectively explore the rhizosphere, where they can obtain the substances necessary to sustain their lives. However, it is also important to note that unlike the predominant logic followed by neo-Darwinist8 approaches to studying plants, Darwin himself did not shy away from acknowledging the potential for plant behaviour to be driven by creative, improvisational, and fleeting dynamics. In a series of studies on orchids and their pollinators that paralleled his work with climbing plants, Darwin became “affectively entangled” in an “inquisitive, multisensory experimental practice” that laid the foundation for expansive theories of interspecies encounters that scholars recently have begun to develop.9 In other words, while today, many ecological sciences are driven by “reductive, mechanistic, and adaptationist logics” that explain the evolution of species by focussing on economies of energy expenditure and maximisation of reproductive fitness, Darwin’s encounters with orchids show that pleasure for its own sake also matters.10 According to this view, utilitarian understandings of evolution constrain how we might imagine encounters between humans, plants, and other living beings. In contrast, an “involutionary approach” provides a theory of ecological relationality that “takes seriously organisms as inventive practitioners who experiment as they craft interspecies lives and worlds.”11 Today, disciplines ranging from molecular biology to anthropology to philosophy are rethinking the assumption that plants are mere inert objects, and that the differences between distinct kinds of vegetal life forms may be explained by mechanistic adaptation. One of the principal scientific movements that has refuted the objectification of plants is organised around the concept of “plant intelligence.” This notion is based on both historical and recent empirical observations that demonstrate that plants exhibit “adaptively variable growth and development”12 throughout the course of their lives, which is not the result of genetic determination. The argument for plant intelligence is based on numerous

20  Governance of human-plant interactions studies conducted over many decades in the twentieth and twenty-first centuries, whose results reveal that plants engage in diverse behaviours that are commonly associated with intelligence in humans and animals. These include activities such as learning, memory, spatial mapping and exploration, intra-organism communication, and inter-organism cooperation.13 Based on these findings, over the past decade, an international group of plant scientists has established the field of “plant neurobiology,” which “aims to understand how plants process the information they obtain from their environment to develop, prosper, and reproduce.”14 The idea is to integrate insights from a variety of disciplines, to consider the combined molecular, chemical, and electrical components of intracellular plant signalling. In so doing, plant scientists are beginning to rediscover experiments conducted in the nineteenth and early twentieth centuries by naturalists, including Alexander von Humboldt, Emile du Bois-Reymond, and Jagadish Chandra Bose, who had already found evidence of electrical signalling in plants. The obscurity of these earlier works can be explained by indirect and direct actions that the scientific community took to suppress ideas that could be construed as anthropomorphising plants.15 In recent years, Victorian-era research has become more difficult to ignore. New discoveries show that plants can effectively propagate at least two principal types of electrical signals: omnidirectional action potentials and slow wave potentials. Additionally, numerous animal neurotransmitters and receptor homologues have been found to exist in plants.16 Therefore, although plants have not undergone “cephalisation” – understood as an evolutionary process that results in the mouth, sense organs, and nerve ganglia becoming concentrated, producing a head region – vegetal beings utilise many of the same molecular, chemical, and electrical strategies as members of Kingdom Animalia to respond to their environments in ways that are both rational and affective. Intelligence in plants may be understood as more distributed than in humans and animals, a fact that challenges the stereotypical association between intellect and individuality.17 Thus, while the ways in which plants act as participants in their environments differ from the discretely embodied way that animals operate, evidence is mounting that the historical treatment of vegetal life as passive and inert is inappropriate. Correspondingly, scholars in the humanities and social sciences are increasingly calling for new ways to conceive of plants, and of human relationships with them. These proposals are united in the intention to understand plants on their own terms, and to take them seriously as living beings. For instance, critical plant studies, an emerging sub-discipline in the humanities, aspires to undermine systems of thought that categorise different forms of life hierarchically, and in so doing permanently privilege humans and animals over vegetal beings.18 The ultimate aim of critical plant studies is to utilise ethical, political, historical, cultural, textual, and philosophical lenses as means to subvert the dominant, instrumental relationship that humans maintain with plants. By paying attention to the specific capacities of plants, we might better understand the way that agency is distributed in human-plant encounters, remembering that “categories

Taking plants seriously in law  21 and configurations of human entanglement with the nonhuman world are not pre-existing givens, but become and are worked out in a process of relation.”19 Put another way, the project is less offering some of our human privilege to plants… than paying close attention to the power effects rendered by the myriad practices by which we do in fact differentiate ourselves from other forms of life, and what forms of violence those practices inevitably inflict.20 Therefore, taking plants seriously – and taking seriously the ways that human activities harm them – can provide the conceptual foundation for reimagining the ways that various living beings interrelate. Importantly, while these arguments have only recently emerged in contemporary scientific discourse, they have been implicit to the cosmologies of numerous human cultures for hundreds if not thousands of years. Non-instrumental relationships between people and plants form part of various religious belief systems – most prominently, Jainism but also Hinduism, Buddhism, and several European pagan traditions. Vegetal and human life is also conceived as coequal in the cosmologies of Indigenous peoples across the world, including those that inhabit the land that has become the country of Ecuador. For instance, animistic worldviews generally understand that plant, animal, and human realms “interpenetrate,” which means that violence perpetrated by one being against another occurs within a framework of balance and reciprocity.21 An example of this kind of worldview is found in how the Runa people of the Ecuadorian Amazon relate to their environment as an “ecology of selves” in which all living beings, including humans, animals, and plants, think, and in which all thoughts are themselves alive. Therefore, the world beyond the human is not a meaningless one made meaningful by humans. Rather, mean-ings – significance – emerge in a world of living thoughts beyond the human in ways that are not fully exhausted by our alltoo-human attempts to define and control these.22 In the Runa ecology of selves, selfhood is not confined to beings that have brains or central nervous systems, and it is not limited to individual organisms. Thus, selfhood can be decentralised or “distributed over bodies,” 23 and even shared by life forms that become hybridised. While the idea of a human-plant hybrid self may appear strange to conventional scientific epistemology, interspecies interactions are pervasive even in industrialised and technology-driven societies. One example is the kind of “becoming corn” bond that has been forged between humans and Zea mays. Over time, people and corn have coevolved into a situation of significant mutual dependence, such that corn has played a fundamental role in human history and the development of globalised industrial food production, while corn now relies on people to ensure its reproductive success.

22  Governance of human-plant interactions The ubiquity of maize and its derivatives in modern human diets means that “the presence of corn isotopes in human cells undermines greatly the notion that the human is an impermeable structure. Similarly, it destabilizes the idea of the ontological abyss between humans and plants.”24 In certain Latin American cultures – for instance, the Matlatzinca of Mexico – native varieties of maize constitute the “axis of identity.”25 Therefore, human beings are not existentially elevated above or separated from other species, whether they are other members of the animal kingdom, or plants, bacteria, fungi, or other life forms. Instead, humans continuously interact with, influence, and are shaped by these beings in semiotic processes of responding to the environments in which we live. Although such ideas are beginning to gain traction, historically, rationalist scientific and philosophical discourses overwhelmingly have followed a “zoocentric and hierarchical” approach to the conceptualisation of plants.26 The valuation of human and animal life over that of plants has coincided “with the need to justify untrammelled human resource use – the emergence of hierarchy precedes the act of domination. It precedes acts of commodification and ownership.”27 This onto-epistemic ordering has become entrenched in reductive rationalist paradigms, through the drawing of distinctions between nature and culture, and between human and object. In this way, science came to be understood as a system and a methodology that separates us as “moderns” from our ancestors, who we may implicitly or overtly regard as quaint or primitive. Today, however, it has become clear that public “matters of concern,” including the emergence of biotechnologies and the various uses to which plants are put in industrial agricultural systems, blend political, scientific, popular, and specialist discourses to such an extent that the false dichotomisation of nature and culture is no longer possible to maintain.28 One way to reimagine the artificial nature/culture binary is through the concept of “naturecultures,” in which nature and culture are not separate constructs, but rather synthesised and mutually constituted spaces of encounter. Human and non-human beings interacting in naturecultures are constantly “bonded in significant otherness,” 29 co-emerging in processes of fluid becoming. This way of thinking destabilises dominant contemporary conceptions of what it means to be human, while taking seriously the subjectivity of non-human actors when responding to geopolitical and eco-philosophical issues.30 In both philosophy and law, then, plants could be treated as “persons,” much as nature has been conceptualised in the new Ecuadorian constitutional framework. The practice of treating plants as persons would implicate a re-examination of the instrumental approach that humans predominantly follow when interacting with vegetal life. Doing so would involve “dialogical attentiveness to the presence, to the lives and ways of plants in the world,” and to opening a dialogue in which humans would listen to the “voices” of non-human beings.31 However, extending personhood to vegetal beings would not imply that humans should never utilise plants to meet human needs or desires, or that we should never alter or end plant life, but instead that we should carefully weigh which uses of plants are necessary and which are extraneous.32 Essentially, we should learn to attend

Taking plants seriously in law  23 to the needs of humans and plants alike, because “[a]n awareness that there are other subjects and purposes in the biosphere demands limits to human activity.”33 The idea is to counter the human objectification of plants by accounting for the inherent value of vegetal beings, acknowledging that they should be respected and protected in their own right, and not simply because they are useful to people. Similar arguments in favour of “plant-thinking” would abandon anthropocentric epistemologies, instead recognising that vegetal life has a distinct subjectivity that is capable, in a manner different from that of humans or animals, of accessing, influencing, and being influenced by the world.34 To transcend the historical marginalisation of plants, we can cultivate a form of intimacy with vegetal life, taking seriously affective relationships based on care35 – and even love36 – in human-plant interactions. Doing so would implicate a number of ethical “offshoots,” including taking the side of the plant and working for the plant; not treating vegetation merely as an object, because it is also an agent; and avoiding the total and indiscriminate utilisation of plants as materials for human consumption.37 These ideas have recently inspired incipient advocacy in support of the legal recognition of “plant rights.” The proposal builds on the conjecture that the “right to have rights” is predicated on the special nature of a given subject’s way of being in the world. This means that any substantive notion of plant rights should be grounded in “the uniqueness of vegetal subjectivity,”38 which could take into account, for instance, the ways that plants interact with the environments in which they live and with other species. Such ideas were taken up in the “Universal Declaration of Plant Rights,” a document that was drafted by the Venezuelan non-governmental organisation Avepalmas and presented to UNESCO representatives in Caracas in 2004. The Universal Declaration of Plant Rights proclaimed that plants have the right to live, free from excessive human exploitation, and it proposed measures such as the establishment of seed banks and protected areas to mitigate the risk of species extinction.39 Building on these provisions, Marder (2016) recommended granting two broad classes of rights to plants: the right to flourish (e.g. as manifested in a ban on genetic manipulation to create plants with sterile seeds); and the right to be free of arbitrary violence and total instrumentalisation (e.g. imposing severe restrictions on logging).40 At present, the idea of granting rights specifically to vegetal beings may appear implausible or frivolous and indeed as of 2019, plant rights have not been formally recognised or elaborated in the laws of any country. This contrasts with the rights of nature, which have been endowed with legal protections in numerous jurisdictions – ranging from the Ecuadorian Constitution down to local ordinances. In some instances, these regimes have drawn directly from principles associated with the customary legal systems of diverse Indigenous cultures, which often prescribe “a set of reciprocal rights and responsibilities between humans and other species, as well as between humans and non-living elements of the environment.”41 Thus, rights of nature laws typically establish protections

24  Governance of human-plant interactions for non-humans, while delimiting responsibilities that humans must uphold. Although these novel legal systems to date have not addressed the rights of plants specifically, the positioning of nature as a person with rights creates a systematic platform to challenge the objectification of vegetal life, and to reimagine how the law might order human-plant interactions.

1.2 Recognising nature as a subject with rights Early advocacy in favour of recognising nature as a legal subject materialised as part of the environmental movement in the United States of America. Stone (1972) advanced one influential proposal, in which he countered the contention that it would be “unthinkable” to grant rights to nature by demonstrating that the law had long recognised the subjectivity of non-natural, non-human right holders, including trusts, corporations, joint ventures, municipalities, nation-states, and ships.42 In this way, the extension of legal rights to nature is merely the latest in a series of ruptures of the status quo of the law. The fact is, that each time there is a movement to confer rights onto some new “entity,” the proposal is bound to sound odd or frightening or laughable. This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of “us” – those who are holding rights at the time.43 Thus, the extension of rights to forests, lakes, oceans, and rivers – indeed to nature as a whole – should not be regarded as fanciful or impractical, but rather as a reasonable step towards curbing the subordination of these entities to human activity. Although governments have only recently begun to codify the rights of nature, this manifestation of the contemporary environmental movement parallels other historical conflicts to extend legal rights to previously unrecognised subjects. For instance, advocacy in favour of the rights of nature draws inspiration from struggles to extend rights to formerly enslaved people and to women in the United States. In the words of Nash (1989), today, “[o]wnership, what some even call the enslavement of nonhuman species and of the environment, is again the explosive issue.”44 This time, the fight is between people who call for an “ethically impelled environmentalism,” and “advocates of anthropocentric ethics and environmental exploitation”45 who derive material wealth from nature. Thus, the aim of granting legal rights to nature is not only to establish stronger protections for non-human entities, but also to curb the objectification and commodification of the biosphere and its elements for exclusively human ends. The first instance in which rights of nature were formally recognised in law occurred relatively recently, in an unlikely location. The pioneering change came in the form of a community ordinance in the Tamaqua Borough of Schuylkill County, Pennsylvania, in 2006. The residents of the town of 7,000 people had

Taking plants seriously in law  25 become concerned that a proposal to dump sewage sludge into retired mining pits would contaminate local drinking water.46 With the support of the Community Environmental Defense Fund, an organisation led by Thomas Linzey, an environmental lawyer and proponent of the rights of nature concept, the town council enacted the Tamaqua Borough Sewage Sludge Ordinance. The new law prohibited corporations from interfering with the existence and flourishing of, and from causing damage to natural communities or ecosystems. Furthermore, in a pioneering provision, the Ordinance stated that “Borough residents, natural communities, and ecosystems shall be considered ‘persons’ for purposes of the enforcement of civil rights of those residents, natural communities, and ecosystems.”47 Thus, in Tamaqua Borough, the biosphere became a legal subject, while the law stripped corporations “engaged in the land application of sludge, dredged material, or any other type of waste” of their personhood.48 From these humble roots in Pennsylvania Coal Country, over the past decade the legal recognition of the rights of nature has flourished in communities across the United States. Local ordinances that recognise legal personhood in nature have been enacted in places as diverse as Santa Monica, California; Mountain Lake Park, Maryland; Mora County, New Mexico; Nottingham, New Hampshire; Wales, New York; Athens, Ohio; Pittsburgh, Pennsylvania; and Halifax, Virginia.49 To date, at least 96 subnational rights of nature laws have been adopted in localities across the United States,50 and several states have considered constitutional amendments that would establish provisions for the rights of communities and of nature. One of these is Colorado, where a state constitutional amendment was proposed in 2014 to recognise the right of municipalities to pass laws that would grant rights to nature.51 Furthermore, Native American tribal governments, including the Ponca Nation52 of Oklahoma and the HoChunk Nation53 of Wisconsin, have voted to recognise the rights of nature in their governing laws. While rights of nature jurisprudence has advanced in a decentralised manner in the United States, other countries have granted rights to non-human entities in national legislative or even constitutional frameworks. Manifestations of this movement may be found in legislation that has been enacted in Ecuador, in addition to Bolivia, New Zealand, and Uganda; in high court decisions in Bangladesh, Colombia, and India; and in state-level laws in Mexico, with proposals under consideration in other countries.54 One prominent example culminated in 2012, when the New Zealand government and the Māori people signed a treaty to settle a longstanding dispute over the discharge of sewage wastewater into the Whanganui River.55 The agreement expressed the intention of the parties to statutorily recognise the status of the Whanganui River (“Te Awa Tupua”) as a legal entity with standing in its own right, which is thus incapable of being owned in an absolute sense.56 The rights of the Whanganui River were formalised in legislation that was enacted in 2017, while in the meantime a separate law transformed Te Urewera National Park from the property of the Crown government to an entity with independent legal personality, which owns itself and must be managed in a way that respects its rights.57

26  Governance of human-plant interactions Although the New Zealand laws are limited in scope, in that they only grant rights to particular entities, other countries have taken a more expansive approach. For example, in 2019, the Ugandan Parliament passed the National Environment Act. The law recognised several measures to guarantee the rights of nature. Foremost, the Act provided that “nature has the right to exist, persist, maintain and regenerate in its vital cycles, structure, functions and its processes in evolution.”58 Any person in Uganda may enforce this guarantee by bringing a lawsuit on behalf of nature.59 Furthermore, the Ugandan Act imposed a series of obligations on the government, requiring that officials “apply precaution and restriction measures in all activities that can lead to the extinction of species, the destruction of ecosystems or the permanent alteration of the natural cycles.”60 Finally, in addition to its recognition of the rights of nature, the law created a series of duties to which human actors must adhere, including to create, maintain, and enhance the environment, and to prevent pollution.61 As of 2019, the Ugandan National Environment Act was one of the most comprehensive examples in the world of binding national legislation to grant rights to nature, and it was the first regime of this kind to have been enacted in Africa. Nevertheless, it is important to recognise that certain Andean countries in South America have already accrued more than one decade of experience with the translation of the rights of nature into a legal construct. The recognition in these countries that Pachamama or Mother Earth is a subject of rights has been part of a broader strategy that leftist governments deployed to mobilise Indigenous Andean cosmologies in support of new forms of political ecology and environmental ethics.62 The South American countries in which the rights of nature concept has been realised most fully are Bolivia and Ecuador, neighbours whose pre-Columbian, colonial, and post-colonial histories overlap in many ways. Therefore, a review of the Bolivian rights of nature regime can help us to understand how a similar system was conceived concurrently in Ecuador. The foundation for the kind of experimental lawmaking that led to the eventual recognition of the rights of nature in Bolivia was laid in a new Constitution that the country enacted in 2009. The 2009 Constitution of Bolivia recognised that everyone has the right to a healthy, protected, and balanced environment. The exercise of this right must be granted to individuals and collectives of present and future generations, as well as to other living beings, so that they may develop in a normal and permanent way.63 Subsequently, the Bolivian legislature enacted two related laws to implement the new constitutional framework and to govern the “rights of Mother Earth” (la Madre Tierra), which entered into force serially, in 2010 and 2012. The first Bolivian rights of nature regime was the 2010 Law of the Rights of Mother Earth, which defined Mother Earth as a “dynamic living system comprising an indivisible community of all living systems and living organisms,

Taking plants seriously in law  27 interrelated, interdependent and complementary, which share a common destiny.”64 The 2010 Law also recognised that Bolivian Indigenous and peasant nationalities and peoples consider Mother Earth to be a sacred being. The legal status of Mother Earth was delimited as a “collective subject of public interest,” such that all of her components, including human communities, were conceived as right holders under the law.65 Furthermore, the exercise of individual rights was limited by collective rights in the living systems of Mother Earth, such that any conflict of rights must be resolved in a way that does not irreversibly affect the functionality of living systems.66 The 2010 Law further enumerated seven specific rights to which Mother Earth is legally entitled. These are: (1) to life, (2) to the diversity of life, (3) to water, (4) to clean air, (5) to equilibrium, (6) to restoration, and (7) to live free of pollution.67 These rights were complemented with a series of obligations to which the government is bound, including to develop policies and systematic actions to prevent species extinction, the destruction of life cycles, the overexploitation of the components of Mother Earth, and the commodification of life systems.68 The 2010 Law also obligated the State to develop balanced forms of production and consumption patterns, and to promote the recognition and defence of the rights of Mother Earth in the international realm.69 Likewise, the regime stipulated that natural and juridical, public and private persons must fulfil several duties. These include to defend and respect the rights of Mother Earth; to adopt production practices and consumption habits that would be in harmony with Mother Earth; to assure the sustainable use of the components of Mother Earth; and to report all acts that violate the rights of Mother Earth, living systems, or their components.70 The second Bolivian legal regime concerned with instantiating the rights of nature was the 2012 Framework Law of Mother Earth and Holistic Development for Living Well. This system was enacted for the declared purpose of establishing a basis for holistic development in harmony and balance with Mother Earth for “living well” (vivir bien), approximating the concept of sumak kawsay/buen vivir in Ecuador. The 2012 Framework Law further aimed to guarantee the regenerative capacity of the living systems of Mother Earth, within a framework of complementarity of rights and obligations.71 The 2012 Framework Law thus integrated three novel legal concepts: the rights of Mother Earth; holistic development; and vivir bien, with a primary focus on addressing climate change. In doing so, several principles were enumerated, including that different legal rights must be complementary with one another. This meant that the rights of one legal person cannot be prioritised over those of another legal person.72 In other words, all rights were conceived as interdependent and mutually supportive. Other important principles that the 2012 Framework Law established were that Mother Earth’s “environmental services” cannot be commercialised,73 and that a precautionary approach should be taken to all human activity. This meant that all persons became obligated to prevent harm to the components of Mother Earth, including the environment, biodiversity, human health, and intangible cultural values.74

28  Governance of human-plant interactions Collectively, the Bolivian constitutional and legislative provisions related to the rights of nature established a new paradigm for the interrelationship of human and non-human entities, including plants. These frameworks are notable for their creation of parity between the rights of all persons that are recognised under the law, which, in the Bolivian context, include humans on an individual and collective basis, public and private institutions, and Mother Earth and her components, encompassing plants, animals, and whole ecosystems. Furthermore, in Bolivia, the conception of the rights of nature was substantiated through the obligations that all persons must uphold, signifying that, ostensibly, new associations between diverse right holders should emerge. Although the separate legal conceptions of the rights of nature in Bolivia and Ecuador parallel one another in many ways, it is in the latter country that, as of 2019, the rights of nature construct has achieved the most complete actualisation in law. In 2008, the concept was embedded in a major reform to the Ecuadorian Constitution, and it has subsequently shaped the making of subordinate legislative and regulatory frameworks covering diverse subject matter, including intellectual property for plants. Furthermore, numerous judicial decisions have litigated and interpreted the scope of the rights of nature in Ecuador over the past decade, as will be discussed in Chapter 8. For these reasons, it is necessary to explore the Ecuadorian instantiation of the rights of nature in detail.

1.3 Eco-centric Ecuador: constitutional protections for Pachamama Ecuador is one of the seventeen countries in the world classified as “megabiodiverse,” and it is recognised especially for its “vast floristic richness, which is still not very well known and is often under threat.”75 It has been estimated that the country houses more plant species per unit area than any other South American nation76 and that although Ecuadorian territory covers only 0.05 per cent of the total land surface area of the Earth, it hosts approximately 10 per cent of global biodiversity. The exceptional status of the Ecuadorian environment is woven into the cosmologies of the diverse Indigenous peoples who populate the coastal, Andean, and Amazonian regions of the country, which, in the past two decades, have won significant political influence in the national government. Recently, the interaction of environmental consciousness and cultural heritage came together in debates over the need to recognise the rights of both nature and of Indigenous peoples during the making of a new Ecuadorian Constitution. To understand how the first constitutional embodiment of the rights of nature in history was achieved, it is essential to take into account a series of undercurrents that converged in the years prior to the 2007 Constituent Assembly. The political history of Ecuador throughout the twentieth century was fraught with volatility.77 Several successive military regimes controlled the government between the 1960s and 1979, at which point the country reinstated a constitutional democratic system. However, the return to democracy did not secure stability in Ecuador, with continued unrest attributable in large part to economic

Taking plants seriously in law  29 and environmental issues. By 1998, the devastating effects of the El Niño climactic phenomenon – including especially agricultural production losses borne by campesino farmers – coupled with the precipitous fall in global crude oil prices led the country to declare bankruptcy, which, in turn, provoked skyrocketing inflation. In 2000, President Jamil Mahaud converted Ecuador’s currency into the United States dollar, which resulted in further price increases. Subsequently, Mahaud’s successor President Gustavo Noboa imposed strict austerity measures, and concurrently several of the largest banks in the country collapsed. In the meantime, various social movements coalesced in the early 2000s, forming an “uncommons” which involved the alliance of various heterogeneous “worlds,” each with “an interest in nature or the environment that acknowledges neither is only such.”78 Primary areas of activism centred on protesting economic policies labelled neoliberal and hegemonic, and advocating in favour of stronger rights for Indigenous and ethnic communities. Other platforms focussed on law reform efforts to enact protections for nature or the environment, with the aim of remediating damages to sensitive ecosystems that extractive industries had caused throughout the twentieth century. During his presidential election campaign, the economist and former Minister of Finance Rafael Correa took advantage of the various social movements that were underway in Ecuador, uniting diverse causes under the umbrella of the new “Proud and Sovereign Homeland (PAIS) Alliance” (Alianza PAIS – Patria Altiva i Soberana) party. In 2006, Correa was elected to his first term in office. One of his most significant campaign promises had been to oversee a comprehensive reform to the Ecuadorian Constitution. Correa upheld this promise, and a new Constitution was drafted from November 2007 to October 2008, during the aforementioned national Constituent Assembly, which was comprised of 130 democratically elected delegates from all 24 provinces. Prior to the 2006 presidential election and the organisation of the Constituent Assembly, social movements demanding greater rights for Indigenous peoples, minority ethnic groups, and campesinos had already gained visibility in national politics. This recognition was catalysed through the promotion of sumak kawsay, which was reinvigorated and mobilised by Indigenous peoples’ advocates and the leaders of other civil society organisations to demand a series of law reforms, including to secure land and water rights, to protect Ecuadorian biodiversity, and to guarantee food sovereignty79 for rural peoples. As described earlier in this chapter, sumak kawsay, translated as “good living” or “living well” – in contradistinction to “living better,” as one might expect to do in a consumer capitalist economy – is a notion derived from Andean cosmologies in which human beings interact collectively and harmoniously with each other and with nature. Sumak kawsay became a key motivation for the constitutional reformation process that was undertaken during the Constituent Assembly. Alberto Acosta, the Ecuadorian economist who served as President of the Constituent Assembly, advocated for the inclusion of the concept, in addition to recognising the rights of nature, in the 2008 Constitution. Acosta believed that doing so would make explicit the intention to abandon the then-reigning governmental orientation

30  Governance of human-plant interactions towards development through neoliberal capitalist economic policies.80 Subsequently, and throughout the Correa presidency, Ecuadorian lawmakers repeatedly invoked sumak kawsay or its Spanish translation, buen vivir, as an “ordering paradigm” that criticised standard international conceptions of development and economic growth and declared that such objectives should be checked by newly constitutionalised protections, including the rights of nature.81 In this context, the official embodiment of buen vivir may be understood as a “complex, not lineal concept”82 that was translated from Indigenous cosmology to statist doctrine in Ecuador. The conceptualisation of sumak kawsay/buen vivir and the rights of nature during the constitutional framing process occurred through a series of debates between the 130 delegates to the Constituent Assembly, who were spread across ten “tables” or themes, including citizens’ rights (Mesa 1) and natural resources and biodiversity (Mesa 5). During the debates, the delegates presented various interpretations of what the rights of nature should mean in the Ecuadorian context. At the first debate over the proposed constitutional text that would delimit the rights of nature, the Secretary of the Constituent Assembly, Francisco Vergara Ortiz, noted, what worries us and leads to the protection of nature, elevating it from object of legal protection to subject of rights, is the need to change the development paradigm, the legal approach and the relationship that human beings have with our environment.83 Therefore, as in Bolivia, the legal recognition of the rights of nature in Ecuador was coupled with complementary political goals, including the transformation of the national economic model and the reaffirmation of Indigenous cultural values and systems of knowledge. For this reason, the enacted version of the 2008 Ecuadorian Constitution equates nature with Pachamama, a word derived from either the Kichwa or the Aymara language. Pachamama is a concept that signifies “first of all, the land, the land that produces the crops that feed men [humans], and the landscape, with its diverse accidents in which the supernatural force is manifested in each step, in its very image.”84 Thus, when the constitutional text was drafted, the noun Pachamama was included given that it, in its meaning, covers the concept of “subject of rights” and allows us to show that this new legal conception of human relationships with nature was long ago assimilated by Andean cultures.85 In this way, the constitutionalisation of the rights of nature in Ecuador was significant not only for its extension of legal personhood to non-human, living and non-living beings, but also for its intention to restructure relationships between different human groups.

Taking plants seriously in law  31 So, when we speak…of sumak kawsay we would like to not only be taking a few little words from Kichwa, like Pachamama, like sumak kawsay, to justify that we are doing something progressive in this Constitution, but rather…to invite us to unlearn, to invite us to decolonise our minds and our hearts.86 This process of unlearning – or of relearning Indigenous orderings of relationships between human beings and nature – should involve the levelling of the hierarchy of living entities that reigns in contemporary legal systems. As one delegate to the Constituent Assembly put it, The human being must leave aside the anthropocentric vision of reality in which he assumes that he is master and lord of everything he can conquer, to give way to a biocentric vision, in which he considers himself a part of everything around him, another member of this community of life.87 This biocentric vision that the Constituent Assembly adopted shaped numerous provisions of the 2008 Constitution. Thus, the new regime elaborated a variegated instantiation of the rights of nature. Foremost, the 2008 Constitution declared that nature would be a subject of rights, rather than simply an object of protection.88 The rights that Pachamama would enjoy in Ecuador included to have its existence respected holistically, and to the maintenance and regeneration of its vital cycles, structure, functions, and evolutionary processes.89 The constitutional embodiment of the rights of nature also included the right to restoration, designed to link with the obligation that human and non-human legal persons (e.g. the State; corporations) would have to compensate individuals or groups of people whose livelihoods may be negatively impacted by restoration efforts.90 The Constitution also mandated that the State must apply precautionary and restrictive measures to activities that may lead to the destruction of ecosystems or the permanent alteration of natural cycles.91 The Ecuadorian system empowered “all individuals, communities, peoples, and nations” to call upon public authorities to enforce the rights of nature.92 This ability of human actors to bring legal actions to enforce the rights of nature has already been tested in Ecuadorian courts on diverse occasions over the past decade, as Chapter 8 will discuss. Another way that the 2008 Constitution aimed to give effect to the rights of nature was through the requirement that the government create incentives for human and non-human legal persons to protect nature and to promote respect for all of the elements of which Pachamama is comprised.93 Finally, it is notable that while humans were granted the right to benefit from the environment and its natural wealth, towards the realisation of sumak kawsay, the Constitution prohibited the commercialisation of environmental services, whose production, benefits, use, and utilisation are to be regulated by the government.94

32  Governance of human-plant interactions While the incorporation of the rights for Pachamama into the national Constitution was itself significant, it is also noteworthy that these guarantees were strengthened further in 2014, when the Ecuadorian Criminal Code was reformed to include a series of sanctions for offences committed against the environment, nature, or Pachamama. The first type of penalty that the law enumerated encompassed crimes against biodiversity, which were defined to include the invasion of ecologically important areas, the provocation of wildfires, harms caused to wild flora and fauna, and assaults against the national genetic heritage.95 Second, the Criminal Code identified a series of crimes against natural resources, a category that comprises harms caused to water, the soil, and the air.96 Third, the law criminalised certain actions related to environmental management, including the prohibited or unauthorised management of hazardous products, wastes, or substances, and the falsification or concealment of environmental information.97 Fourth, the Criminal Code delimited offences against non-renewable natural resources, consisting of activities related to illicit mining and the extraction, storage, distribution, and commercialisation of fossil fuels and biofuels.98 Finally, the law stipulated that in addition to any penalties that might be levied on parties who commit crimes that harm Pachamama, violators would have the obligation to integrally restore any damaged ecosystems and to compensate and remedy any human individuals or communities affected by the harms.99 In addition to the impact on the 2014 reform to the Criminal Code, the constitutional embodiment of the rights of nature has shaped the contents of other recently enacted legislative frameworks in Ecuador, including those related to intellectual property for plants. Foremost, it is notable that the Preamble of the Ingenios Act traced its lineage to the 2008 Constitution. Specifically, the new constitutional regime required the creation of a new national system of science, technology, innovation, and traditional knowledge100 that would be based on respect for the environment, nature, life, human cultures, and sovereignty.101 The theory was that intellectual property can serve as a tool for the construction of this reimagined system of knowledge generation, in addition to transforming the “productive matrix”102 of the country. As later chapters in this book will discuss, one of the key aspirations of the Ingenios Act was to reconstitute intellectual property law in a way that would transcend the conventional dichotomisation between humans, who are recognised as the subjects of rights, and their “inventions” – including plants – which are conceived as objects of intellectual property. Instead, the regime endeavoured to establish a new, eco-centric approach to the generation and circulation of knowledge in Ecuador. This was evidenced in one of the foundational aims of the Ingenios Act, which was to generate instruments to promote an economic model that would democratise the production, transmission, and appropriation of knowledge as a public interest good, thus guaranteeing the accumulation and redistribution of wealth in a way that is just, sustainable, and in harmony with nature.103

Taking plants seriously in law  33 At least in theory, this meant that the Ingenios system should offer new opportunities for human-plant interactions as mediated through intellectual property law. Given this proposition, the story that this book recounts in Chapters 5–7 centres on analysing whether, and if so, how, the Ingenios Act and other Ecuadorian laws have been able to move beyond the false dichotomisation of subject and object to set new terms for mutually supportive and non-instrumental relationships between human and vegetal life forms.

1.4 Towards an “ecological turn” in law The constitutional recognition of the rights of nature in Ecuador provided a basis for the remaking of several national legislative and regulatory frameworks in ways that attempted to actualise an eco-centric approach to lawmaking. This strategy impacted law reform efforts, including the formation of the intellectual property regime of the Ingenios Act, which was designed with the aim to reorient the national economy away from instrumental uses of nature and its constituent elements, including plants. In its place would be a system focussed on sumak kawsay, or the harmonious interaction between different groups of people, and between human and non-human beings. However, as later chapters of this book will describe, the degree to which this vision actually resulted in substantive changes to the national system of intellectual property for plants in Ecuador, or to the treatment of Pachamama in national legal systems generally, is more complicated than the official rhetoric might suggest. Nevertheless, the Ecuadorian experiment provides many points of reflection to imagine how intellectual property law and associated legal regimes might become ecologically oriented, especially when granting rights in relation to human uses of plants. In practice, this transformation could take many forms, and the purpose of this book is not to generate a model law or to prescribe a series of policies that governments should implement indiscriminately. Instead, the aim of the analysis of the recent history of lawmaking in Ecuador is to trace the outlines of a new way of thinking about human-plant relations, as mediated by intellectual property law and other legal systems that are pertinent to the administration of vegetal life. The fundamental contention of this book is that we must begin to “see” plants, taking them seriously as participants in the biosphere that we coinhabit when we design laws that set the terms for relationships between human and vegetal beings. This means that systems of intellectual property and other regimes should move beyond the dominant, reductionist conception of plants as “technologies,” “inventions,” or “resources,” for which the only restriction on anthropocentric use is the priority of other human individuals or institutions. Instead, we could begin to envisage a new regulatory network that would endeavour to promote the well-being of multiple life forms, including diverse groups of people and different kinds of plants, based on the recognition that all living beings make important contributions to the environments in which they live. In this way, the ecological turn could

34  Governance of human-plant interactions empower intellectual property law to recognise merit beyond the use or exchange value that these systems currently assign to plants that circulate in human economies. A corollary of this argument is that an ecological turn in lawmaking would require a concerted effort to transcend the imagined subject/object binary that characterises dominant regimes, including those which grant intellectual property for plants. In contrast to conventional systems that conceive of human actors (whether in the form of individuals or institutions) as subjects of rights while plants constitute objects of regulation, the law could be reconfigured to recognise a plurality of subjectivities. Doing so would abandon the Aristotelian “world of false dichotomies”104 in which vegetal life is ignored or regarded as passive and inert, to appreciate the ways in which plants participate as active contributors to ecosystems and human societies. While conventional laws might continue to set the terms for instrumental uses of plants, the scope of legal systems that deal with vegetal life could simultaneously come to view plants as valuable for their own sake, and therefore deserving of protection independent of the anthropocentric purposes that they fulfil. While the argument that this book develops focusses largely on advocacy for a more ethical treatment of vegetal life in legal systems, it is undeniable that at least part of this exercise is anthropocentric. This is because an ecological turn in intellectual property law and related regimes would also strive to promote equity in the utilisation of plants by different human actors. Specifically, rather than solely authorise one category of people (e.g. plant breeders; inventors) to control the circulation of plant materials, the law should account for the interests of all human actors who participate in value chains along which the methodical development and propagation of vegetal species unfold. In other words, while the law should reward the achievements of the breeders or inventors who create new varieties of plants through advanced scientific methods, it should also account for the contributions of other human actors who shape vegetal lives through myriad encounters. These may include Indigenous peoples and other subaltern groups, farmers, gardeners, conservationists, and other actors who participate in human-plant interactions. However, before analysing the prospect of an ecological turn in lawmaking, told as an Ecuadorian story, it will first be necessary to explore how conventional international legal systems conceive of vegetal life. Today, plants are governed as intellectual property – most commonly under frameworks that grant “plant breeders’ rights” – and constitute the regulatory objects of other types of laws. These include regimes that control the access, utilisation, and circulation of plant genetic resources, as well as seed certification schemes and systems that grant protections for Indigenous or traditional knowledge as applied to agriculture and biodiversity conservation. Although distinct social, political, and economic agendas motivate these various types of legal frameworks, they all generally rely on an instrumental conceptualisation of plants as objects of human use.

Taking plants seriously in law  35

Notes

36  Governance of human-plant interactions

Taking plants seriously in law  37

38  Governance of human-plant interactions

2

Turning plants into intellectual property

Although philosophy has grappled with questions about the nature of vegetal life since at least the time of Aristotle, throughout history the law generally ignored plants. In the past and at present, to the extent that legal systems have engaged with vegetal beings, their focus has been narrow, centring on regulating plants as the background of human life or as the instruments of human use, rather than considering them as deserving of protection for their own sake. In other words, the law has treated vegetal life forms as objects of appropriation rather than as subjects of rights. Comprehensive legislative and regulatory frameworks to govern human uses of plants began to emerge in the decades following industrialisation in Europe and North America. In this era, aspirations towards standardisation increasingly brought agricultural and food production into the ambit of the law, which like other contemporary ways of thinking about plants followed a rationalist and utilitarian logic. This shift was enabled by the expanded role of science and new technologies in agriculture, which were mobilised to instrumentalise human-plant interactions, converting vegetal beings from heterogeneous life forms into economic goods capable of mass production and dissemination. Notwithstanding the fact that this conversion of plants into commodities has become pervasive in legal systems worldwide, Ecuadorians today continue to relate to vegetal beings in multifaceted ways. As a megabiodiverse country, Ecuador is inhabited by at least 46 vegetation types and more than 17,000 vascular plant species, in addition to 17 different human cultural groups.1 The number of vegetal species used and the patterns in the utilisation of plants by different groups of people depend on several factors, including the botanical richness of the local ecosystem, and socioeconomic, environmental, and geographical dynamics. For instance, the relative market integration, educational opportunities, ability to access public services, and habitat disturbance of a given community influence the ways that its people interact with plants.2 Depending on how these factors manifest in particular places, Ecuadorians may relate to plants as food, food additives, feed, fuel, materials, toxins (e.g. to control pests), and medicines as well as to complement social, cultural, religious, aesthetic, and environmental aspects of community life.3

40  Governance of human-plant interactions Ecuadorian agriculture is commensurately varied, best depicted as a “mosaic” of systems that range from subsistence farming, to production for local markets, to large-scale cultivation for international export.4 These sundry agricultural systems include a mixture of small-, medium-, and large-scale operations, whose produce ranges from “boom and bust” plantation crops derived from introduced species, to native food plants that are sourced from a variety of climates and ecosystems. In geophysical and sociocultural terms, Ecuador is a diverse country, characterised by a breadth of climatic zones and farming traditions that span the tropical lowlands on the Pacific coast, the Andean highlands whose glaciated volcanoes reach heights of over 6,300 m above sea level, and the lush rainforests of the Amazon basin. Customary agricultural practices in Ecuador have evolved over the course of many centuries to fit this uniquely “vertical” landscape. Historically, communities in different eco-zones practised ecological complementarity as a means to minimise risk by planting and trading a diversity of crops timed around staggered planting and harvest seasons.5 Thus, one of the key features that traditionally has typified Ecuadorian agriculture is verticality, embodied in a system that is designed to exploit and control the maximum possible number of ecological niches at different altitudes, in order to ensure the sustainability of crop production and food security.6 In the highland regions of Ecuador, numerous factors have transformed the nature of campesino farming over the past half-century. These include agrarian reform, which involved breaking up large plantations (latifundios) that since independence in 1830 had been controlled by European-descended Ecuadorians. Agrarian reforms were supposed to redistribute land more equitably, thereby empowering Indigenous and minority ethnic peoples in particular and campesinos in general to manage their holdings through property rights. Unfortunately, however, land reform also made it harder for these groups to access key agricultural inputs, because customary systems of ecological complementarity, which relied on non-proprietary social relations, were dismantled.7 Additionally, small-scale Ecuadorian farmers have reported that numerous other challenges have complicated their crop management systems in recent years, ranging from decreased production to climate change, loss of traditional knowledge, and continued subjugation, including – in the eyes of some communities – by international non-governmental organisations that have encouraged the planting of improved varieties of crops.8 Meanwhile, industrial agricultural production continues to expand in Ecuador, both in the physical terrain that it covers, and in social and political influence. According to the most recent statistics published by the Food and Agriculture Organization of the United Nations, industrial agriculture takes up as much as 80 per cent of the productive land in Ecuador, even while constituting only 15 per cent of national agricultural production units, that is, farm holdings.9 Ecuadorian industrial agriculture utilises 63 per cent of the water available for irrigation, and “makes an indiscriminate use of agrochemicals and energy.”10 The businesses that engage in large-scale agriculture in Ecuador principally grow

Turning plants into intellectual property  41 crops for export, the most prominent of which are bananas, cacao, and coffee, in addition to ornamental plants such as roses and carnations. In contrast to the relatively small percentage of Ecuadorian farms that may be classified as industrial, approximately 85 per cent of the agricultural production units in Ecuador are familial, with 64 per cent of national production in the hands of smallholder farmers.11 Further highlighting the importance of small-scale agriculture in the country, 60 per cent of the food that Ecuadorians consume is sourced locally from family farms. This campesino agricultural sector is characterised by cultivation on small plots, mostly by individual family units, of crops that are important for subsistence, for exchange with other farmers, and for sale in local markets. Ecuadorian campesinos generally live below the national poverty line, and these small-scale and subsistence farmers rely on customary practices of seed saving and exchange through farmer-to-farmer networks to obtain planting material.12 Although industrial agriculture contributes significantly to the national economy – three of Ecuador’s top five non-petroleum exports are agricultural products13 – customary forms of agriculture are much more relevant to Ecuadorians living in rural areas, both to provide a source of income and to guarantee food and nutritional security.14 Many, though not all, of the campesinos who rely on customary farming in Ecuador have Indigenous heritage. Today, the country is home to 14 Indigenous nationalities spread across the three principal geographical regions (coast, Andes, and Amazon). According to official figures, approximately 7 per cent of the Ecuadorian population self-identifies as Indigenous, but other sources estimate that Indigenous peoples comprise between 25 and 30 per cent of the total population of the country.15 Notwithstanding this discrepancy, it is clear that Kichwa (also written as “Quichua”) speaking peoples constitute the majority of the Ecuadorian Indigenous population, representing the largest Indigenous communities in both the Sierra and Amazon regions. In Quechua culture, humans use plants to fulfil many of the purposes described above, including agriculture and food production. However, the Quechuan conception of vegetal life is far from instrumental. According to Quechua cosmology, all of the beings of nature are imbued with the essential energy of samai (also written as “samay”), which means that they are alive. This animist perspective understands that “a rock, a river, the mountains, the sun, the plants, all are beings that have life and they also enjoy a family, joys and sorrows equivalent to those of human beings.”16 Therefore, all of these beings relate to each other as equals, and they are common participants in culture, religion, philosophy, law, territory, and biodiversity. “In other words, we can say that we are all part of one whole.”17 In Amazonian Quechua and Shuar mythologies, plants and animals are regarded as former humans whose relationships with other humans became estranged. This notion enables relationships of exchange between different humans and non-humans, with a focus on commonalities rather than differences across species boundaries.18 In Ecuador, the idea that plants – and indeed that all elements of nature – are subjects that share common histories and participate in relationships founded

42  Governance of human-plant interactions on exchange rather than appropriation is not an archaic or marginal concept. By embodying rights for Pachamama in the 2008 Constitution, Ecuadorian lawmakers explicitly invoked sumak kawsay and implicitly channelled samai as guiding principles for national policy development. In doing so, these officials have laid the groundwork for a departure from the dominant contemporary treatment of plants in the law, namely as objects of appropriation for human use, including when conceived as inventions.

2.1 Plants as inventions The movement to extend the concept of invention to encompass vegetal life began to develop in the late nineteenth and early twentieth centuries. The origins of this trend can be traced to the acceleration of systematised breeding efforts to create improved agricultural and horticultural crops following industrialisation in Europe and North America. This occurred during the late nineteenth and early twentieth centuries, when proposals began to be advanced that endorsed the idea of allowing the breeders who develop new varieties of different plant species to reap exclusive benefits from the commercialisation of “their” varieties. For instance, in 1907, plant breeders in Great Britain debated the idea of using copyright to protect new varieties as a means to encourage breeders to share the details of their experiments and the resulting knowledge with the public.19 Similarly, around the turn of the twentieth century, nurserymen and orchardists in the United States used novel pricing strategies in combination with trademarks as means to gain exclusive control over the sale of the new trees and ornamental plants that they developed.20 Meanwhile, in industrialised countries the long-standing customary practices that farmers employed to select and crossbreed crop lines that demonstrated preferred characteristics increasingly gave way to new methods that positioned plant breeding as a science. This change was invigorated in 1900, when the principles of inheritance that Gregor Mendel had derived from experiments that he conducted with pea plants from 1856 to 1863 were rediscovered. Turn-of-thecentury plant scientists avidly investigated the implications of Mendel’s Laws for plant breeding. Ultimately, Mendel’s work provided a conceptual basis for the deliberate and calculated selection of desirable traits to obtain enhanced varieties of domesticated vegetal species.21 The application of Mendelian genetics to scientific breeding represented one of several factors that culminated in the creation of the first formal intellectual property framework for plants in the world, namely the United States Plant Patent Act of 1930.22 Other dynamics that contributed to the making of the Plant Patent Act included the proliferation of efforts to develop and market specific crop varieties in the United States, and the influence of powerful actors – including representatives of the nascent American seed and nursery industries – on the legislative process.23 Generally, it has been argued that three broad causal forces converged in the creation of the United States Plant Patent Act. These comprise geographic (e.g. the rapid territorial expansion of American plant breeding), scientific

Turning plants into intellectual property  43 (e.g. advances based on Mendelism and “pure line” theory), and social (e.g. the influence of actors such as the owners of seed and nursery businesses) currents, which together resulted in the extension of intellectual property to plants.24 Although plants became objects of exclusive ownership under the United States Plant Patent Act, applying the concept of invention to biological organisms was a fraught process. The essential problem with granting patents to govern the control of particular varieties of plants was that even if understood as products of human creativity, plants “compress diverse economic, cultural, and legal contexts.”25 In other words, extending the individualistic conception of “inventorship” to plants may obfuscate the various interspecies entanglements – including with other plants, humans, animals, bacteria, or other life forms, and with non-living environmental influences – that collectively may contribute to genetic change in a given vegetal species. One way that the Plant Patent Act dealt with this complication was to expand the notion of invention beyond contemporary standards. Relying on a norm that was inspired by the then-current American system of patents for industrial products and processes, the Act recognised as inventions the new varieties that plant breeders obtained by intentionally and meticulously crossing different parental lines. However, under certain circumstances the law also allowed for unintentional improvements to be protected as inventions. Specifically, the provisions of the Plant Patent Act enabled applicants to obtain intellectual property for plants that resulted from bud variations, which are random mutations that occur in the absence of human intervention. Indeed, the first plant patent ever granted – for a rose named “New Dawn” in August 1931 – was the result of a chance aberration that the owner had noticed and was able to replicate.26 Therefore, under the Plant Patent Act, the role of the plant inventor was “to identify and then preserve, capture, and retain what nature had spontaneously created but was unable to repeat unaided.”27 This constituted a more relaxed conception of inventive activity than was required under the United States Patent Act of 1836, 28 which was in force at the time of the enactment of the Plant Patent Act. The standard of invention that the Patent Act of 1836 required necessarily linked the generation of an invention to the creative production of one or more discrete human minds. For instance, a 1934 analysis of American legal standards for patents defined inventions as “the devising of new ways of attaining given ends.”29 According to this understanding, even the “spontaneous” inventions that were protected under the Patent Act of 1836 inevitably must have resulted from human creative activity. In contrast, the Plant Patent Act expanded the definition of invention to include new varieties of plants that came into being because of genetic mutations that were either random or induced by some non-human influence. To transform the concept of invention in a way that would conform to the realities of living beings that are capable of reproducing themselves, the Plant Patent Act also had to re-form the essential elements of the modern “patent bargain.”30 Thus, compliance with the criteria of origination, description, and reproduction that the United States Patent Act of 1836 mandated meant that

44  Governance of human-plant interactions plant inventions had to be converted into a textual form, such that the written description of the claimed specimen would enable its facile manufacture.31 The Plant Patent Act made this rendering coherent by only allowing for asexually reproducing plants to be protected, because the genetic homogeneity of such species could be ensured by propagation through methods such as cuttings, layering, division, budding, and grafting. Therefore, consistency could be guaranteed not only across the objects manufactured (i.e. the plants themselves), but also between the textual analogue and subsequent copies. Another notable feature of the Plant Patent Act is that the law did not permit “tuber-propagated” plants to be patented. Early interpretations of the Act assumed that this exception only applied to the Irish potato and the Jerusalem artichoke. This is because these plants were understood as unique among asexually reproducing species, in that they are propagated by planting the same part of their anatomy that is sold as food.32 The exclusion of seed-propagated plants and tubers used for human consumption from the scope of the Plant Patent Act is generally understood as a reflection of Congressional reluctance to allow patents to be obtained for food.33 Thus, the law was designed to recognise intellectual property only for a certain kind of vegetal object – one that could allow owners to reap economic benefits, but that would not undermine more essential human uses of plants. Overall, the Plant Patent Act contrasted with the system of patent protection for other classes of inventions that was embodied in the Patent Act of 1836, in that it established a form of intellectual property whose parameters were tailored to the biological nature of certain kinds of plants. This extension of patents to plants was “only by analogy, establishing a species of patent right that addressed plant inventions as exceptions or approximations to mechanical or chemical inventions.”34 In so doing, the Plant Patent Act acknowledged that “nature”, not just human inventors, plays a key role in plant breeding.35 Concretely, this recognition meant that the plant patent system could not simply import the same criteria for protection required under the Patent Act. Instead, the United States Congress had to delimit where natural processes would be understood to end, and invention to begin.36 Deliberations over the establishment of this binary led to the formulation in the Plant Patent Act of a series of requirements for protection that differed substantially from those mandated by the Patent Act of 1836. Most notable among the modifications that were made to the patentability criteria was the reformulation in the Plant Patent Act of the written description or disclosure requirement. While the Patent Act of 1836 required an invention to be described sufficiently well so “as to enable any person skilled in the art or science to which it appertains…to make, construct, compound, and use”37 it, the Plant Patent Act rendered this requirement significantly less rigorous.38 Specifically, the plant patent regime only required a written description that is “as complete as is reasonably possible.”39 The result of this relaxation of the disclosure requirement was that “‘intellectual possession,’ or the ability to provide a recipe for the fabrication of the

Turning plants into intellectual property  45 artefact, mattered less than the physical possession of the biological ‘means of production.’”40 In other words, while the historical development of modern patent doctrine required lawmakers to draw distinctions between ideas and embodiments – or between an invention and the material artefact in which it is expressed41 – even today the American plant patent system does not operate to disembody inventions from their tangible representations. Thus, in contrast to obtaining a patent for a mechanical invention, the inquiry for plant patent protection became “not whether inventors could provide an enabling description but whether they could ‘identify and use the [invention] in the manner described in the patent.’”42 In addition to reconfiguring the disclosure requirement, the Plant Patent Act also created a new criterion for patentability, that is, distinctness. Pursuant to this requirement, plant patents were made available to anyone who “invents or discovers and asexually reproduces any distinct and new variety of plant.”43 The law did not define the meaning of distinctness for the purposes of evaluating applications for plant patents.44 Instead, it required only that the applicant describe the invention, in a single claim, which may also recite the principal distinguishing characteristics of the claimed plant.45 Meanwhile, the Act mandated that the specification section of the plant patent application must contain a “complete detailed description of the plant and the characteristics thereof” that distinguished it from “other related known varieties.”46 However, the law did not require the quantification of these distinguishing features, nor did it mandate a necessary degree of separation from other varieties (e.g. a minimum required number of distinct characteristics) to render a plant patentable. Overall, the United States Plant Patent Act narrowly conceptualised plants as inventions, as indicated by several of the key features of the law. For instance, while the Act extended the concept of invention to objectify vegetal life, it also reconfigured the notion of the inventor in a way that acknowledged the co-participation of nature in the development of new varieties of plants. Furthermore, the law denied protection to the kinds of plants that humans most commonly eat as dietary staples, thereby converting only a limited subset of vegetal life into patentable objects. Finally, it is notable that the Plant Patent Act only dealt with types of plants that could be easily transformed from biological organisms into textual representations. Pragmatically, this meant that the Act would only recognise exclusive ownership rights for asexually reproducing species of plants. It is notable that as subsequent forms of intellectual property for plants have endeavoured to extend protection to all vegetal species, these systems have needed to find new ways to ensure that human users can predictably and reliably reproduce the plant objects that the law would protect. In the years following the enactment of the Plant Patent Act in 1930, this feat was achieved through the distillation of the concept of “plant breeders’ rights.” As Chapter 3 of this book will describe, this once obscure form of intellectual property has proliferated in recent years, having been codified in legislative frameworks the world over.

46  Governance of human-plant interactions

2.2 The emergence of systems for plant breeders’ rights Although the Plant Patent Act was fraught with conceptual tensions and practical limitations, throughout the middle of the twentieth century other countries followed the American precedent. Examples of early legislation that conceived of plants as objects that could be protected as intellectual property include laws passed in Cuba (1937) and South Africa (1952).47 Furthermore, the extension of the rationality of intellectual property to plants continued to unfold in other parts of the world through an “ongoing dialectic of resistance and accommodation” involving numerous influences, institutions, and actors.48 In the 1950s in Europe, proposed reforms that would have expanded national patent laws to recognise plants as inventions failed, but the underlying logics and interests continued to circulate and wield influence.49 These dynamics congealed in the organisation of the first session of the Diplomatic Conference on the Protection of Plant Varieties in 1957. After several years of negotiations at the Diplomatic Conference, a “Union for the Protection of New Varieties of Plants” (UPOV, for its initials in French) was formed, adopting its first International Convention for the Protection of New Varieties of Plants in 1961.50 This multilateral agreement established common principles and a generalised framework for the subsequent enactment of national or regional “plant variety rights” or “plant breeders’ rights” regimes. The scope of the 1961 Act of the UPOV Convention was substantially broader than the United States Plant Patent Act, in that it allowed intellectual property to be obtained for plants of all botanical genera and species,51 including those which reproduce sexually. The only significant limitation on this scope was that plant varieties that had already been patented were deemed ineligible for protection with plant breeders’ rights.52 The initial members of UPOV were a group of 13 European countries, together with the European Economic Community, the United International Bureaux for the Protection of Industrial, Literary and Artistic Property – which later became the World Intellectual Property Organization – the Food and Agriculture Organization of the United Nations, and the Organization for Economic Co-operation and Development.53 Subsequent to its enactment, the UPOV Convention was revised three times, superficially in 1972, and substantively in 1978 (“UPOV 1978”) and 1991 (“UPOV 1991”). In recent years, the accession of new members to the Convention has accelerated dramatically, growing from 29 members in 1999 to 76 in 2019.54 Given the difficulties inherent to the formulation of plants as inventions, one of the most significant challenges faced during the making of the 1961 Act was the delimitation of what kinds of vegetal life forms would be eligible for appropriation as intellectual property. Ultimately, the UPOV Convention was structured around the notion of the plant variety, a concept that needed to be distilled and standardised in a way that would allow individual UPOV members to identify the kinds of plants that could be protected as intellectual property, while excluding categories of vegetal life that did not conform to the standard.

Turning plants into intellectual property  47 The fields of taxonomy and nomenclature provided an initial basis upon which the meaning of the plant variety was fixed, such that in UPOV 1961 the term referred to tangible objects that plant breeders created.55 Thus, UPOV 1961 granted intellectual property for the products of plant breeding activity, that is, varieties that had been produced through deliberate human intervention. Furthermore, a given plant variety had to be a stabilised construct, such that other human actors could reproduce it in the form claimed in the application for breeders’ rights. Similar to the United States Plant Patent Act, the 1961 Act of the UPOV Convention mandated a series of criteria that applicants for plant breeders’ rights would need to meet in order to obtain protection. These included the requirement that the claimed variety be novel, which under the UPOV 1961 framework meant that at the time of application for protection, the new variety must not have been offered for sale or marketed for longer than a certain amount of time. 56 Specifically, the variety could not have been commercialised in the country in which protection was sought prior to the date on which the plant breeders’ rights application was filed, or for longer than four years in any other country. This contrasted with the conception of novelty that the Plant Patent Act envisaged, which inquired whether a plant invention had ever been previously described in a printed publication, or had been in public use or sold, in any country in the world. Thus, under the UPOV system, plant breeders could work for as long as necessary to derive a variety and still obtain exclusive exploitation rights, even if the variety already had been publicly described or used, so long as commercialisation only occurred within the prescribed time periods. Furthermore, genetic stabilisation of a new variety was a crucial condition to obtain protection under the UPOV framework. This was because unlike the system envisaged by the Plant Patent Act, the plant breeders’ rights model could be applied to all vegetal species, including those that reproduce sexually. Such species typically are more variable than those that reproduce asexually, because unless they are self-pollinated, sexually reproducing plants necessarily incorporate genetic material from two distinct individual parents. To address this problem, UPOV 1961 specified that only genetically homogenous and stable plant varieties would be eligible for protection. Additionally, the 1961 Act required that applicants for plant breeders’ rights demonstrate that their varieties are “clearly distinguishable” from other known varieties. The three essential requirements for protection – distinctness, homogeneity (later changed to uniformity in the 1991 UPOV Act), and stability – have come to be known as the “DUS” requirements.57 The DUS criteria have proven to be durable over time, and they have been reinscribed in each subsequent revision to the UPOV Convention since the 1961 Act entered into force in 1968. The ubiquity of the DUS requirements in the legal conceptualisation of the plant variety is evidenced by the fact that today, even countries that are not members of UPOV have invoked these criteria to substantiate the plant variety concept in their national intellectual property laws.58

48  Governance of human-plant interactions The DUS criteria are defined only vaguely in all versions of the UPOV Convention, a fact that provides the governments of UPOV member countries with latitude to interpret the notions of distinctness, homogeneity/uniformity, and stability according to their own standards. Instead of providing specific definitions, UPOV effectively delegated the elaboration of these concepts to domestic regulatory agencies, which ostensibly possess specialised knowledge about local growing conditions. This decision was consonant with contemporary understandings that plant phenotype results from the interaction of genes and environment.59 The only specific parameter of the UPOV criteria for protection was that national delineations of distinctness, homogeneity/uniformity, and stability must be sufficiently concrete to enable the realisation of “DUS testing,” which should involve a technical examination based on which plant breeders’ rights may be awarded.60 By establishing the DUS criteria, the UPOV Convention created a plant variety concept whose nature was techno-legal, derived from precedent meanings in botanical science, taxonomy, and law. For instance, the origin of the notion of distinctness was sourced in legislation governing seed certification and trademarks that already existed at the time of the making of the first version of the UPOV Convention, while also being influenced by the United States Plant Patent Act.61 In UPOV 1961, distinctness was demonstrated when “the new variety [is] clearly distinguishable by one or more important characteristics from any other variety whose existence is a matter of common knowledge at the time when protection is applied for.”62 The existence of common knowledge could be established under the 1961/1972 and 1978 UPOV Acts through reference to factors such as cultivation or marketing already in progress, entry in an official register of varieties, or inclusion in a reference collection or precise description in a publication.63 Meanwhile, applicants could prove that their varieties were distinct by showing evidence of morphological or physiological characteristics, provided that these were capable of precise description and recognition.64 The 1991 Act of the UPOV Convention reconfigured the notion of distinctness, making it easier for applicants to fulfil this requirement. Distinctness was defined in UPOV 1991 as being met when a variety “is clearly distinguishable from any other variety whose existence is a matter of common knowledge at the time of the filing of the application.”65 The rationale behind removing the qualifying phrase “important characteristics” from the definition was based on the confusion surrounding the original formulation of distinctness. The earlier enunciation suggested that a variety must be distinct from existing varieties “by some feature related to merit,” which was never the intention of the framers of the Convention.66 In fact, proposals to make the award of plant breeder’s rights protection contingent on a demonstration of “usefulness” were rejected at the Second Session of the UPOV Diplomatic Conference held in 1961, due to the difficulties associated with making qualitative determinations about the value of new plant varieties.67 Meanwhile, the requirement of homogeneity was included in UPOV 1961 as an assurance that growers who purchase plant material could be confident

Turning plants into intellectual property  49 that the variety would reliably exhibit the characteristics for which it had been bred.68 Individual plant phenotype may vary for reasons explained by both genotype and environment, so the homogeneity criterion was designed to limit variation to some acceptable amount, which was left unspecified in all versions of the UPOV Convention. The definition of homogeneity under the 1961/1972 and 1978 Acts required that a new plant variety be “sufficiently homogeneous, having regard to the particular features of its sexual reproduction or vegetative propagation.”69 Homogeneity was substituted by the term uniformity in UPOV 1991. Under the new formulation, a variety “shall be deemed to be uniform if, subject to the variation that may be expected from the particular features of its propagation, it is sufficiently uniform in its relevant characteristics.”70 UPOV guidance documents on conducting DUS testing clarify that the examination of homogeneity/uniformity may consider any obvious characteristic of the variety, and that the level of uniformity should be assessed in the context of the reproductive biology of the specific species to which the variety pertains.71 The final criterion, stability, was defined in UPOV 1961/1972 such that a variety needed to “be stable in its essential characteristics, that is to say, it must remain true to its description after repeated reproduction or propagation.”72 This definition remained unchanged in the 1978 Act of the UPOV Convention. Under UPOV 1991, the only significant alteration to the formulation of the stability requirement was the substitution of the word “relevant” for “essential” in the description of the characteristics that must remain stable over time. As with the modification of the definition of uniformity in UPOV 1991, this revision may be understood as purely linguistic, with no change intended to the substance of the requirements for protection.73 As a practical matter, the criteria of homogeneity/uniformity and stability are linked, in that DUS examiners generally take stability for granted once uniformity has been established.74 The plant variety concept that has been popularised in the various iterations of the UPOV Convention – as well as through other legal regimes, such as seed certification laws – focusses essentially on varieties that professional plant breeders develop. This emphasis on plant varieties that are novel, distinct, homogeneous/uniform, and stable has been universalised as countries throughout the world have adopted the UPOV model. The rationale underlying these criteria included the idea that only plant varieties that are of high “quality” – understood in terms of economic value – and that demonstrate markedly improved performance should be converted into proprietary objects. In other words, although the formulation of the DUS requirements was not intended to subject all forms of vegetal life to exclusive human ownership, these conditions have encouraged people to value only certain kinds of plants, while all others have been relegated to the background of human life. Another effect of the UPOV Convention has been the consolidation and abstraction of the plant variety concept. While the meaning of this notion in UPOV 1961 was derived fundamentally from horticultural and plant breeding knowledge and practices, subsequently the delimitation of the plant variety has been rendered increasingly political and legal.75 The most significant expansion

50  Governance of human-plant interactions Table 2.1 Comparison of UPOV 1978 and UPOV 1991 Provision

UPOV 1978

UPOV 1991

• At least 15 upon becoming • Botanical genera & • At least 5 upon entry bound; all genera and species into force; 10 within 3 species protected within 10 years. years; 18 within 6 years; 24 within 8 years. • Scope of protection • Breeder’s authorisation • Breeder’s authorisation required for: required for:



i ii marketing.

• Material that may be protected

• Plant varieties

• Exceptions

• Acts done for noncommercial purposes (implied) • Utilisation of the protected variety for creating other varieties or for the marketing of such varieties.

• Period of exclusivity

• 18 years from date of issue (trees and vines) • 15 years from date of issue (all other species). • A variety of the same botanical genus or species may be protected with either plant breeders’ rights or a patent.

• Relationship with patent law

• Plant varieties • Harvested material • Products made directly from harvested material (optional) • Essentially derived varieties • Varieties that are not clearly distinguishable • Varieties whose production requires repeated use of the protected variety • Acts done privately and for non-commercial purposes • Acts done for experimental purposes • Acts done for the purpose of breeding other varieties • Use by farmers for propagating purposes, on their own holdings, the product of the harvest (optional). • 25 years from the date of issue (trees and vines) • 20 years from the date of issue (all other species). • A variety of the same botanical genus or species may be protected with both plant breeders’ rights and a patent.

Turning plants into intellectual property  51 of the plant variety conception to date occurred in the 1991 Act of UPOV, which extended intellectual property protection to encompass “essentially derived” and other types of varieties that are not clearly distinguishable from any variety that previously had been protected with plant breeders’ rights.76 Meanwhile, UPOV 1991 lengthened the periods of intellectual property protection that plant breeders are eligible to receive,77 while curtailing exceptions that under previous versions of the Convention had allowed people other than the intellectual property owner to use a protected variety without the authorisation of the breeder.78 These changes have contributed to an increase in the number of genera and species eligible for intellectual property protection, which, in turn, has driven the growth of the overall volume of breeders’ rights certificates that have been granted worldwide.79 The key differences between the 1978 and 1991 Acts of the UPOV Convention are displayed in Table 2.1. As can be inferred from the table, the latter version of the UPOV Convention represents a substantial expansion of the scope of plant breeders’ rights in comparison to the former. Proponents and opponents of the UPOV system agree that the 1991 Act created a “stronger” system of intellectual property for plants in comparison to its predecessors.80 This is because UPOV 1991 allowed for more kinds of plant objects to be privatised, for longer periods of time, and subject to fewer limitations. However, it is also important to recognise that the refinement of the plant variety concept in UPOV 1991 effectively limited the extent to which intellectual property can objectify vegetal life. This is because types of plants that are genetically heterogeneous, even those that are developed through intentional human activity such as the “landraces”81 that farmers customarily cultivate, were excluded from the ambit of plant breeders’ rights. Likewise, wild plants were expressly omitted from the conceptualisation of the plant variety, since UPOV considers that these have not been intentionally improved by a human breeder. Thus, as the influence of the UPOV Convention has grown over the past two decades, so too has the notion of the plant variety as a standardised, legally legible, and marketable construct. This means that the law has ignored the many forms of vegetal life that have not been intentionally stabilised – that is, made “modern” – through certain kinds of human activity.

2.3 Alternatives to the plant breeders’ rights model of intellectual property for plants The evolution of the plant variety as a discrete concept, as embodied in the UPOV Convention, was facilitated and consolidated by advances in genetics and molecular biology that beginning in the 1970s and 1980s were increasingly applied to plant breeding practices. These evolving laboratory-based techniques included protocols for molecular marker-based trait selection and genetic modification.82 Breakthrough innovations in plant genetic transformation coincided with a shift in the central locus of breeding activity in many industrialised countries, from the public to the private sector.83 As transgenic crops were

52  Governance of human-plant interactions granted initial regulatory approvals to be commercialised in many territories, the private seed industry became vertically integrated and dominated by a small number of transnational corporations, shifting away from a formerly competitive agribusiness sector that was comprised predominantly of small and frequently ­family-owned businesses.84 These scientific and economic dynamics coevolved with and contributed to the expansion of forms of intellectual property beyond the UPOV plant breeders’ rights model, such that plants became objects of exclusive human control by means of various legal systems. For instance, beginning in the 1980s, United States Supreme Court decisions clarified that in addition to protection under the Plant Patent Act and the Plant Variety Protection Act of 1970,85 the standard patent law could be used to obtain intellectual property for plants, including varieties of sexually reproducing species.86 This change meant that the same conditions as for other classes of inventions would be required to obtain patents for vegetal beings, provided that they meet the criteria of novelty, nonobviousness, utility, and an appropriately “enabling” written description, which could be satisfied by making a deposit of a representative example of the claimed plant variety.87 Similarly, in 1998, the European Parliament declared that plant biotechnological inventions not confined to a particular variety could be patented if they meet the requirements of the European Patent Convention.88 During the same period, other industrialised countries reformed their national intellectual property laws to allow plant breeders to obtain patents for new plant varieties and other plant-derived technologies, based on identical eligibility requirements as other categories of inventions.89 This occurred, for instance, in Japan, Australia, and New Zealand. In these and other industrialised countries, the range of patentable plant-related inventions today has grown to encompass a broad range of subject matter, which, depending on the jurisdiction, may include new plant varieties; genetic components such as genes or chromosomes; reproductive material such as seeds, whole plants, cuttings, or protoplasts; and plant parts or extracts, such as fruit, flowers, or oils. In the nearly 90 years since the United States Plant Patent Act was passed, developments in science and law, inextricably coupled with important political, social, economic, and technological dynamics, have enabled the transformation of vegetal life into an object that can be claimed as intellectual property and privatised. While this trend was spearheaded in parts of the world where industrial agriculture already had begun to take hold in the 1930s, today legal systems of intellectual property for plants have been established even in countries where customary, non-industrial, and “agroecological” 90 forms of agriculture remain dominant. Correspondingly, opposition to this way of ordering human-plant interactions has grown, with critics often targeting the UPOV Convention model of intellectual property for plants.91 The 1991 Act of the UPOV Convention has been especially derided based on the perception that it limits customary practices of seed saving and exchange in farmer-to-farmer networks, which, in turn, could reduce access to proprietary

Turning plants into intellectual property  53 seeds and jeopardise the right to food of farmers.92 Governments of countries in which campesino or peasant agriculture is widespread have faced fierce opposition from civil society actors when lawmakers have deliberated about whether to join UPOV.93 International pressures often have spurred such discussions, as Chapter 3 will explain. Because of the various concerns about UPOV 1991, which generally centre on the need to balance the proprietary rights of plant breeders with the interests of other stakeholders, over the past several decades the idea of creating alternatives to the UPOV model for plant breeders’ rights has garnered significant interest.94 In fact, non-UPOV intellectual property laws for plants – typically conceived as plant variety protection rather than plant breeders’ rights – have already been enacted and implemented in several countries, including India, Malaysia, and Thailand.95 Typically, these laws have been designed around the general aim to create balance between multiple groups of human users of plants, including those in the scientific, industrial, and agricultural sectors. Systems of plant variety protection have sought to realise this goal by recognising a form of intellectual property similar to the UPOV Convention model of market exclusivity for new, distinct, uniform, and stable varieties, while also granting protections for other kinds of plants. For instance, plant variety protection laws have included provisions designed to safeguard farmers’ interests as the custodians and developers of native and local plant varieties. These regimes have also recognised the need to protect and support the ongoing utilisation of customary agricultural practices as a means to conserve national agrobiodiversity. One prominent example of a non-UPOV plant variety protection law is found in Thailand, which enacted its Plant Varieties Protection Act in 1999.96 Soon thereafter, India established its own regime, the Protection of Plant Varieties and Farmers’ Rights Act, in 2001.97 More recent examples of laws that incorporate elements of the UPOV Convention while also recognising protections for diverse kinds of plant varieties have been passed in Bhutan,98 Ethiopia,99 Indonesia,100 Malaysia,101 and the Philippines,102 among other countries. Several of these frameworks make intellectual property available for various kinds of plants, with rights corresponding to diverse groups of human subjects. For instance, the Thai Plant Varieties Protection Act (1999) enabled intellectual property to be obtained for new varieties; local domestic varieties; general domestic varieties; and wild varieties. Meanwhile, the law established a fund to support the conservation, research, and development of plant varieties in local communities. Based on these examples of the creation of independent national plant variety protection systems, some scholars have generated template legislation that countries could consider during lawmaking processes. For instance, Correa (2015) outlined a policymaking “tool” that specifically addressed the needs of developing countries, towards the end of providing an alternative to the UPOV 1991 model of plant breeders’ rights.103 The Correa (2015) proposal explored numerous elements that could be incorporated into a national plant variety protection framework. For instance, the law could establish a typology that would include three categories of plant varieties: (1) new uniform

54  Governance of human-plant interactions plant varieties; (2) new varieties that are genetically heterogeneous, including new farmers’ varieties; and (3) farmers’ traditional varieties.104 The first category would create a system of intellectual property for varieties developed by plant breeders, approximating the 1978 Act of the UPOV Convention. The second category would offer a form of protection for newly created, genetically heterogeneous varieties, based on the criteria of novelty, distinctness, and “identifiability” instead of uniformity.105 The owner of a variety that falls into the second category would have the right to receive remuneration, but not to exclusively exploit the protected variety. As a result, the law would not restrict third party use of a new heterogeneous plant variety, but payment to the right holder would be required in the event that the variety were commercialised.106 Finally, intellectual property protection would be available for traditional farmers’ varieties, subject only to the criterion of identifiability.107 Traditional farmers’ varieties would also receive a remuneration right, but payment would be made directly to a national Seed Fund. Income from this Fund would be used to support the conservation and sustainable use of plant genetic resources, especially via on-farm conservation practices and through the establishment of community seed banks.108 Other proposals have examined how countries could experiment with a “differentiated approach” to the governance of plants as intellectual property. Like the framework proposed by Correa (2015), recommendations have specifically addressed the need to protect the interests of diverse groups of human users of plants in countries whose agricultural sectors are characterised by small-scale and customary farming practices. For instance, focussing especially on the region of Sub-Saharan Africa, De Jonge and Munyi (2016) recommended establishing different “levels” of protection for different crops in relation to different categories of farmers.109 Thus, a “differentiated” plant variety protection system would give special treatment to smallholder farmers, who could be defined based on metrics such as farm size or cropping area, actual production or production capacity, or profits or income.110 Furthermore, the De Jonge and Munyi (2016) proposal would exempt farmers who meet the definition of smallholder from infringing any proprietary rights granted to plant breeders, thereby allowing them to use, exchange, and sell the farm-saved seed of intellectual property-protected varieties. In contrast, the activities of non-smallholder farmers would not be exempted from the requirement to obtain authorisation from the right holder for commercial uses of protected plant varieties. Nevertheless, non-smallholder farmers would be allowed to use the farm-saved seed of certain crops on their own holdings while paying a reduced royalty to the intellectual property owner.111 While the non-UPOV model laws that Correa (2015) and De Jonge and Munyi (2016) have proposed contain several interesting recommendations, it is important to recognise that for many countries, the practical utility of these plans may be limited. This is because many national governments have undertaken commitments to recognise particular forms of intellectual property for plants. These obligations typically stem from different kinds of international

Turning plants into intellectual property  55 commercial agreements, which have driven the entrenchment, in legal systems worldwide, of an instrumental relationship between human beings and plants. The following chapter will examine how bilateral, regional, and trans-regional free trade treaties have universalised the rationalist, utilitarian – and indeed, proprietary – logics of human-plant relations, both generally across the world, and particularly in Ecuador.

Notes

56  Governance of human-plant interactions

15 16 17 18 19

20 21 22 23 24 25 26 27 28 29 30

31 32 33 34 35 36 37 38 39 40 41

Annual Report.” Retrieved from http://www.heifer-ecuador.org/wp-content/ uploads/2015/10/Ecuador_Annual_Report_English.c.pdf (accessed 8 November 2019). This demonstrates that Ecuadorian campesinos are essentially self-reliant surrounding the production and procurement of seed, one of the principal agricultural inputs. Refworld. (May 2018). “World Directory of Minorities and Indigenous Peoples – Ecuador.” The UN Refugee Agency. Retrieved from https://www.refworld.org/ docid/4954ce3223.html (accessed 18 December 2019). Martínez-Corbalán, E. (2010). Pachamama y Sumak Kawsay. In J. J. Tamayo-Acosta & N. Arrobo-Rodas (Eds.) Pueblos Indígenas, Derechos y Desafíos: Homenaje a Monseñor Leonidas Proaño. Valencia, España: ADG-N Libros. p. 114. Id. Nuckolls, J. B. (2010). Lessons from a Quechua Strongwoman: Ideophony, Dialogue, and Perspective. Tucson, AZ: University of Arizona Press. p. 4. Charnley, B. (2013). Why Didn’t an Equivalent to the US Plant Patent Act of 1930 Emerge in Britain? Historicizing the Boundaries of Un-Patentable Innovation. In C. Lawson & J. Sanderson (Eds.) The Intellectual Property and Food Project: From Rewarding Innovation and Creating to Feeding the World. Farnham, UK: Ashgate Publishing Ltd. pp. 103–122. Kevles, D. J. (2007). Patents, Protections, and Privileges: The Establishment of Intellectual Property in Animals and Plants. Isis, 98, 323–331. Spiertz, H. (2014). Agricultural Sciences in Transition from 1800 to 2020: Exploring Knowledge and Creating Impact. European Journal of Agronomy, 59, 96–106. Townsend-Parnell Plant Patent Act of 23 May 1930, Pub. L. No. 245 (71st Congress). Fowler, C. (2000). The Plant Patent Act of 1930: A Sociological History of its Creation. Journal of the Patent and Trademark Office Society, 82, 621–644. Charnley, supra note 19. Pottage, A. & Sherman, B. (2007). Organisms and Manufactures: On the History of Plant Inventions. Melbourne University Law Review, 31, 539–568: 541. Sherman, B. (2019). Climbing Rose. In C. Op den Kamp & D. Hunter (Eds.) A History of Intellectual Property in 50 Objects. Cambridge, UK: Cambridge University Press. pp. 184–191. Id. at 191. U.S. Pub. L. 24–357, 5 Stat. 117. Plant, A. (1934). The Economic Theory Concerning Patents for Inventions. Economica, 1 (1), 30–51: 32. The notion of the patent bargain holds that the basic purpose of patent law is not simply to protect the proprietary rights of an owner, but to “provide access to informational resources that are necessary to create an informed set of publics.” Murray, K. (2013). A Politics of Patent Law: Crafting the Participatory Patent Bargain. New York: Routledge. p. 1. Pottage & Sherman, supra note 25 at 567. Magnuson, R. A. (1948). A Short Discussion on Various Aspects of Plant Patents. Journal of the Patent Office Society, 30 (7), 493–511. Fowler, supra note 23 at 642. Pottage & Sherman, supra note 25 at 543. Id. at 558. Id. Patent Act of 1836, supra note 145, Section 6. Fowler, supra note 23. 35 U.S. Code § 162. Pottage & Sherman, supra note 25 at 566. Pottage, A. & Sherman, B. (2000). Figures of Invention: A History of Modern Patent Law. Oxford, UK: Oxford University Press. p. 1.

Turning plants into intellectual property  57

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60  Governance of human-plant interactions

3

Universalising an instrumental approach to plants in law

Throughout the 1980s, the formalisation of harmonised, international intellectual property norms became a growing matter of concern for certain commercial interests. This impulse was catalysed during negotiations between the parties to the General Agreement on Tariffs and Trade (GATT), a treaty that entered into force in 1948 and whose purpose was to promote international trade by reducing or eliminating economic barriers such as tariffs or quotas. In 1986, the “Uruguay Round” of negotiations to amend the GATT commenced, for the first time including discussions about how to regulate intellectual property in international commerce. Industry and government actors from the United States were the primary drivers of these conversations, claiming that intellectual property obtained under American laws was not being protected adequately or effectively in other countries.1 The Uruguay Round proved to be the longest series of negotiations in the history of the GATT, requiring a total of 87 months spanning the period of 1986–1994. This lengthy duration is likely explained by the fact that the Uruguay Round was the most ambitious in scope of any GATT negotiation round to date, endeavouring to expand the treaty to cover areas of commerce, including services, capital, and agriculture, while attempting to broker an agreement between 123 participating countries. Many of the questions that the Uruguay Round addressed were contentious, including whether, and if so, how plants should be conceived as objects that could be protected as intellectual property. While some parties wanted the GATT to require member countries to recognise intellectual property for plants in their national patent laws, others resisted the notion that plants could be patented. The result was a compromise, embodied in a draft text prepared by GATT Director General Arthur Dunkel and circulated among the parties to the negotiations in 1991. The solution that the “Dunkel Draft” proposed was that GATT member countries would be required to recognise plant varieties as the objects of intellectual property, either in a national patent law or in a “sui generis”2 regime. While this proposal was ostensibly intended to accommodate the interests of all of the parties to the Uruguay Round negotiations, as soon as it was made public, the Dunkel Draft was criticised as being biased in favour of intellectual property owners, who tended to be located in monetarily wealthy, industrialised

62  Governance of human-plant interactions countries.3 Concerns centred on the perception that the dynamics of GATT negotiations had shifted since the 1970s, an era when trading partners ostensibly had striven for “equitable” technology transfer, to an emphasis on protecting the interests of intellectual property owners without adequately accounting for the interests of intellectual property users.4 Notwithstanding these criticisms, the compromise that the Dunkel Draft proposed was incorporated into the final version of the text, which became the Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS” or the “TRIPS Agreement”). The finalisation of this treaty concluded the Uruguay Round negotiations and created the World Trade Organization (WTO) to replace the GATT. The TRIPS Agreement, which entered into force on 1 January 1995, required that all WTO members enable intellectual property to be obtained for plants under their national legal systems. This condition formalised the model proposed in the Dunkel Draft, such that the objectification of plants may take two forms under TRIPS: (1) by making plants patentable; or (2) by creating a sui generis regime to protect plant varieties as intellectual property (Article 27.3(b)). The effect of this provision is that international law has universalised the notion that plants can be the objects of intellectual property, given that as of 2019, 164 countries were members of the WTO. In other words, in that year, there were only 18 countries in the world that had not joined the WTO, while 8 countries were WTO observers. However, notwithstanding the international legal harmonisation that the TRIPS Agreement has attained, a substantial degree of ambiguity continues to exist about how intellectual property laws can be customised, including in ways that would promote the ethical treatment of vegetal life and that would take into account the interests that different human actors have in the utilisation of plants. One reason for this uncertainty is that the language of Article 27.3(b) of the TRIPS Agreement is vague. The provision states that WTO members may exclude plants from patent protection, but that if a country does not allow for plants to be patented, it “shall provide for the protection of plant varieties…by an effective sui generis regime….”5 Following the entry into force of the TRIPS Agreement in 1995, the meaning of the phrase “effective sui generis regime” has been scrutinised and debated exhaustively. Over the past 25 years, numerous analyses have been conducted with the goal to identify the “flexibilities” or “policy space” that WTO members could exploit when interpreting the TRIPS Article 27.3(b) requirement to recognise intellectual property for plant varieties.6

3.1 The contraction of policy space for intellectual property lawmaking Since the entry into force of the TRIPS Agreement in 1995, the practical usefulness of studies that have analysed the flexibilities or policy space inherent in the Article 27.3(b) requirement has been limited by the fact that many WTO members now have additional international obligations that set the terms for

Universalising an instrumental approach  63 the ordering of human-plant interactions in law. There are several factors that explain this shift. Foremost is the fact that following the conclusion of the TRIPS Agreement, subsequent trade agreements have undermined the policy space contained in Article 27.3(b) by requiring parties to adhere to the UPOV Convention.7 Furthermore, relatively wealthier or more powerful parties to negotiations towards bilateral, regional, and trans-regional free trade agreements rarely provide information about sui generis laws alternative to the UPOV Convention, sometimes pressuring their counterparts to join UPOV in exchange for other concessions.8 Critics have observed that this pressure could effectively modify the scope of the TRIPS Agreement, with the practical impact of creating “TRIPS-plus” norms of intellectual property for plants.9 The result of these shifts is that a taxonomy has formed to categorise countries with different international legal obligations in relation to the establishment of systems of intellectual property for plants (Table 3.1). The category of countries with the broadest policy space in this taxonomy may be understood as “legally unbound.” This grouping is defined by the absence of obligations mandated through the terms of international agreements to include plants within the ambit of intellectual property. Legally unbound countries include those that are not members of the WTO, in addition to WTO observers and members of the WTO that are classified as “least developed” (see Appendix A, Table A.1). Under the terms of the TRIPS Agreement, the latter category was granted a transition period, such that least developed countries were not required to implement systems of intellectual property for plant varieties until 1 January 2006. The transition period was subsequently extended until 1 July 2013 and again until 1 July 2021, after the TRIPS Council acknowledged the economic, financial, and administrative constraints that these countries faced, and “their need for flexibility to create a viable technological base.”10 As of 2019, it was unclear whether another extension to the transition period for least developed countries would be granted, such that the obligation to enact intellectual property laws for plants would be delayed until after July 2021. Apart from the 48 countries that were legally unbound as of 2019, all other national governments in the world were obligated, pursuant to the terms of one or more international agreements, to enact laws that conceive of plants as objects of intellectual property. In other words, these countries were “legally bound” (see Appendix A, Tables A.2–A.5). The source of the commitments that these countries have made could include the TRIPS Agreement – for full, non“least developed” members of the WTO (48 countries; Appendix A, Table A.2) – independent membership of the UPOV Convention, with 15 countries bound to UPOV 1978 and 80 countries adhering to UPOV 1991 (Appendix A, Tables A.3 and A.4, respectively), or participation in one or more free trade agreements (Appendix A, Table A.5). Importantly, many countries – including Ecuador – have assumed multiple, overlapping obligations. That is, many governments have elected to join the WTO while also independently adhering to the UPOV Convention, a decision that may have been motivated by participation in one or more free trade agreements. These shifts

64  Governance of human-plant interactions Table 3.1 Typology of Countries with Obligations to Protect Plants as Intellectual Property. Category of Country

Subcategory of Country

Obligation(s)

Source of Obligations

Legally Unbound

Non-WTO & Non-UPOV WTO observer & Non-UPOV WTO member classified as “least developed” & Non-UPOV

None.

None.

None (at present).

None (at present).

By 1 July 2021, protect new plant varieties through (a) patents or (b) a sui generis system. Protect new plant varieties through (a) patents or (b) a sui generis system. Protect new plant varieties with system of breeders’ rights outlined in UPOV 1978, but not with patents. Protect new plant varieties with system of breeders’ rights outlined in UPOV 1991, and possibly also with patents. Depending on specific obligations, may include adhering to UPOV 1978 or UPOV 1991.

TRIPS Agreement Art. 27.3(b).

Legally Bound

WTO member not classified as “least developed” Member of WTO and UPOV 1978

Member of WTO and UPOV 1991

Party to bilateral/ regional/ transregional free trade agreement(s)

TRIPS Agreement Art. 27.3(b). TRIPS Agreement Art. 27.3(b). UPOV Convention (1978). Possibly other trade agreements. TRIPS Agreement Art. 27.3(b). UPOV Convention (1991). Possibly other trade agreements. Terms of the free trade agreement(s).

have resulted in a situation in which a majority of the countries in the world have ratified at least one international agreement related to the governance of human-plant relationships. Specifically, of 197 countries in the world,11 as of 2019, only 47 (24%) were legally unbound, while 149 (76%) were obligated by the terms of one or more treaty frameworks to establish a system of intellectual property for plants. The proportions of the various categories of legally unbound and legally bound countries are shown in Figure 3.1. Finally, it is notable that the fraction of States that are not required to regulate plants as intellectual property will continue to shrink in the coming years. This is because the 22 least developed country members of the WTO will eventually be obligated to ratify the TRIPS Agreement, possibly as early as July 2021. Furthermore, some legally unbound countries have begun to draft and enact domestic intellectual property

Universalising an instrumental approach  65

Figure 3.1 Proportions and Sources of International Legal Obligations to Recognise Plants as Intellectual Property.

laws for plants, even in the absence of any present legal obligation. Examples of such States include Bhutan,12 Ethiopia,13 and Myanmar.14 As Table A.5 demonstrates, in the years since the entry into force of the TRIPS Agreement in 1995, numerous countries have become legally bound to other trade treaties that require the rendering of plants as objects of intellectual property. The United States and the European Union typically have driven negotiations towards the execution of bilateral, regional, and trans-regional free trade agreements, although in recent years, the number of protagonists has increased with the development of large-scale trans-regional accords such as the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Regional Comprehensive Economic Partnership (RCEP). The universalisation of the UPOV Convention model of intellectual property for plants through the terms of these free trade agreements means that the identification of the policy space in the TRIPS Article 27.3(b) requirement is relevant to less than a quarter of the countries on Earth. Instead, it has become increasingly necessary to explore the possibilities for experimentation that exist under the UPOV Convention, towards the reconfiguration of human-plant interactions in law.

3.2 The expansion of UPOV as explained by free trade agreements In some world regions, countries have enjoyed relatively broad latitude to shape their intellectual property laws for plants according to local needs. For example, as of 2019, Asian countries, including India, Thailand, Malaysia, Nepal,  and

66  Governance of human-plant interactions Sri Lanka, were not bound to the UPOV Convention, and they had also avoided entering into “TRIPS plus” free trade agreements.15 In these five countries, non-UPOV sui generis systems for the governance of plants as intellectual property either have already been implemented or were under consideration by their respective national legislatures.16 However, these countries represented the exception rather than the norm. This is because free trade agreements, especially those spearheaded by the United States and the European Union, have operated to universalise the UPOV model of intellectual property for plants. In Latin America, free trade agreements that contain terms related to membership in UPOV are nearly ubiquitous. The country in this region that has been most influenced by international commercial treaties is Chile. The Chilean government independently developed and codified a national intellectual property law for plants in 1994, enacted as the Regulation of the Rights of Breeders of New Plant Varieties Law.17 This framework was modelled essentially on the 1978 Act of the UPOV Convention, and Chile formally adhered to UPOV 1978 in 1996.18 Subsequently, Chilean officials began to explore the possibility of negotiating trade treaties with relatively wealthier countries in the early 2000s.19 The first such agreement to be concluded was a commercial association with the European Union, which entered into force in 2003.20 This treaty granted Chile a measure of flexibility surrounding the development of national plant breeders’ rights legislation, requiring only that the country adhere to either UPOV 1978 or UPOV 1991.21 However, the accommodations under the European Union–Chile agreement were short-lived. This is because another free trade agreement, this time with the United States, was signed and entered into force in 2004.22 The United States–Chile agreement required the parties to “give effect to” UPOV 1991 prior to 1 January 2009.23 A similar agreement that Chile executed with Japan in March 2007 mirrored these terms, requiring adherence to UPOV 1991 by 1 January 2009.24 A fourth trade treaty, which was implemented between Chile and Australia and took effect in March 2009, required accession to UPOV 1991 by the same date as the agreements with the United States and Japan: 1 January 2009.25 Finally, in March 2018, Chile signed the CPTPP, a multilateral trade agreement between 11 countries with coastlines bordering the Pacific Ocean. This Partnership required that each party would accede to UPOV 1991 by the date on which the agreement becomes binding, which was set to occur 60 days after ratification by 50 per cent of the signatories.26 Although more than 50 per cent of the parties to the CPTPP had ratified the treaty by early 2019, Chile – in addition to Brunei, Mexico, and Malaysia – still had not acceded to UPOV 1991. While the Chilean government has been quick to enter into free trade agreements, the process of implementing a national plant breeders’ rights law that would comply with UPOV 1991 has been complicated and contentious. In response to Chile’s non-compliance with its obligations under several of the trade agreements discussed above, in March 2009, President Michelle Bachelet  – then in her first term – introduced legislation in the National Congress whose

Universalising an instrumental approach  67 purpose was to adopt UPOV 1991. 27 Eventually the Legislature approved the text of UPOV 1991 under the administration of Bachelet’s successor, President Sebastián Piñera, in May 2013, 28 but the implementing regulations were never developed and therefore Piñera was unable to endorse them before his term ended. In an ironic twist, in 2014, President Bachelet – this time in her second term – withdrew the draft regulations from consideration by the Congress, for the stated purpose of analysing the impact of the proposed regime on Chilean agricultural communities, and on the circulation of seeds from plants that are native to Chile.29 To complicate the story further, Piñera was elected to the presidency again in 2017 after Bachelet’s second term ended. As of late 2019, the regulatory framework that would implement the new Chilean plant breeders’ rights law was ostensibly still being reviewed, but no clarity had been provided about how much time the evaluation might require to complete. The delay provoked rebukes by the United States based on non-compliance with the trade agreement between that country and Chile,30 while Chilean civil society organisations continued to condemn the implementation of a UPOV 1991-based law.31 A similar situation unfolded in Colombia surrounding the making of a revised national intellectual property law for plants. In 2006, Colombian authorities executed a free trade agreement with the United States that required adherence to the 1991 Act of the UPOV Convention.32 Domestic legislation to institute a UPOV 1991 compliant system of intellectual property for plants was introduced in the Colombian Congress and passed in 2012.33 However, before the new framework could be implemented, the Constitutional Court struck down the law as unconstitutional.34 The court held that the legislation undermined the fundamental right of Indigenous and Afro-Colombian communities to be previously consulted about legislative or administrative measures that would affect them directly. Specifically, the Constitutional Court ruled that the right to prior consultation had been violated based on the rationale that a UPOV 1991 compliant law could affect customary seed management practices, in addition to the “natural development of local biodiversity.”35 Subsequently, the Colombian government initiated a process to revise the law according to the mandates of the Constitutional Court. As of 2019, it was still unclear how the situation would be resolved. Consultations with Indigenous and Afro-Colombian groups were supposed to be held in 2017, but to date, no reports on such dialogues had been made public. As with Chile, the United States government took notice of Colombia’s non-compliance with its free trade obligations.36 However, it was uncertain whether external pressure would incite Colombian lawmakers to pass a revised version of the plant breeders’ rights law that would conform to the standards of UPOV 1991. The United States included Colombia in its Special 301 Report – which annually reviews intellectual property legislation and enforcement activities in America’s trading partners around the world – for several years due to noncompliance with UPOV 1991, 37 and the Colombian government had not responded as of 2019.

68  Governance of human-plant interactions Another Andean country, Peru, has also experienced the impact of international commercial interests on the making of a national law for the governance of plants as intellectual property. In April 2006, the United States–Peru Trade Promotion Agreement was signed, and the Peruvian Congress approved the treaty in June 2006.38 Similar to the various trade agreements that the United States has executed with other countries in the region, the accord with Peru required adherence to UPOV 1991 prior to 1 January 2008.39 Peru did not meet this deadline. However, unlike its neighbours to the north and south, Peru became a member of UPOV 1991 in August 2011.40 Although the country ultimately upheld its treaty obligations, news over the forthcoming implementation of a UPOV 1991-based regime sparked a heated national debate, in which numerous civil society organisations mobilised rural populations to protest against the legislation.41 Following Peru’s formal accession to UPOV 1991, controversy persisted over the prospective enactment of a new plant breeders’ rights law, with concerns centring on the potential impact that the regime could have on small-scale farmers, Indigenous communities, and other marginalised groups.42 The current Peruvian intellectual property regime contains an exception to plant breeders’ rights for individuals who save and sow protected seeds for personal use, within “reasonable limits” and so long as the “legitimate interests” of the breeder are safeguarded.43 This represents the utilisation of policy space that exists under UPOV 1991 Article 15.2,44 which allows UPOV members to recognise a “farmer’s privilege” exception to the intellectual property rights of plant breeders in national legislation. The farmers’ privilege concept refers to the recognition that farmers historically have relied on the ability to reproduce planting material – including from varieties that are protected under intellectual property laws – for personal and non-commercial use without requiring permission from the right holder.45 Although by 2019, eight years had elapsed since Peru adhered to UPOV 1991, the prospective impact of the new plant breeders’ rights regime was difficult to assess. This is because no changes have been made to the country’s legislative and regulatory frameworks as the result of accession to the 1991 Act. One study that conducted an ex-ante impact assessment of the Peruvian agricultural sector concluded that if made to conform to UPOV 1991, the national intellectual property system for plants could adversely affect small-scale farmers’ access to seeds through customary farmer-to-farmer exchange networks.46 However, this would ostensibly only be the case for the seeds of proprietary plant varieties, because varieties not protected as intellectual property would not be directly affected by the UPOV 1991-based law. The authors of the ex-ante impact assessment also speculated that the new Peruvian regime could lead to other deleterious effects in the future, including undermining cultural rights, minority rights, Indigenous peoples’ rights, women’s rights, biodiversity conservation, and the right to food, though it would be difficult to establish a direct relationship between these predicted outcomes and the Peruvian intellectual property law for plants.47

Universalising an instrumental approach  69 In Ecuador, the story is consonant with the histories of neighbouring countries in the Latin American region. Beginning in 2004, Ecuador – along with Peru and Colombia – commenced negotiations with the United States about the possibility of executing a United States–Andean regional free trade agreement.48 However, following two years and fifteen rounds of talks, the Ecuadorian authorities decided to pull out of negotiations towards the proposed treaty. The reasons for the impasse included disagreement about the trade of agricultural goods and the protection of intellectual property, with concerns centring especially on the potential for private patent rights to limit access to medicines and agrochemical products.49 While the prospect that Ecuador might join the United States–Andean accord waned, beginning in 2007, the country initiated a dialogue with the European Union, whose focus was also a potential trade treaty.50 However, as with the prospective agreement with the United States, for years, disputes about intellectual property terms beset the negotiations between Ecuador and the European Union. The fight reached a climax in January 2014, when Ecuadorian President Rafael Correa announced that negotiations would be suspended.51 However, talks restarted just two months later in March 2014, with Ecuador hopeful that the European Union would not cross the “red lines” the country’s leaders had traced around certain intellectual property concerns.52 The tensions that the possible trade agreement provoked were felt by officials throughout Ecuadorian government, including those working in administrative agencies far removed from the treaty negotiations. Thus, the bureaucrats who had been charged with comprehensively revising the national intellectual property system used drafting tactics to put pressure on the European Union to accede to Ecuador’s demands. According to officials involved with the making of the new intellectual property law, the strategy was to include strong or “radical” provisions – such as shortening the period of copyright protection or expanding the grounds on which the government could grant compulsory licences for patented goods – so that Ecuadorian negotiators would enjoy greater bargaining leverage during talks with European Union representatives.53 This approach saw some success. In early 2016, when the fates of the European Union–Ecuador free trade agreement and the prospective new Ecuadorian intellectual property law were uncertain, officials leading the European Union Delegation in Ecuador confided that they were concerned about both the general tone and certain specific provisions of early drafts of the legislation.54 Ecuadorian media commentators fed this apprehension, arguing that Europe grants “a special importance [to] its intellectual property to gain a dominant position in technology and knowledge,” a perspective they deemed to be “absolutely incompatible” with the contemporary strategy in Ecuador, which aspired to “democratise knowledge.”55 Notwithstanding the fraught nature of the negotiation process, Ecuador and the European Union ultimately reached a deal, signing their free trade agreement in November 2016. Technically, the nature of the treaty was such that Ecuador agreed to adhere to an existing trade association that the European

70  Governance of human-plant interactions Union had previously finalised with Colombia and Peru.56 As with most of the free trade agreements executed between Latin American countries and relatively wealthier nations from other regions of the world, the European Union– Ecuador agreement contains terms that require adherence to the UPOV Convention. The intellectual property section of the agreement states that “[t]he Parties shall cooperate to promote and ensure the protection of plant varieties based on [the UPOV Convention], as revised on 19 March 1991.”57 However, this provision includes a footnote clarifying that “[a]t the moment of signature of this Agreement, [UPOV 1978] applies for Ecuador.”58 The inclusion of this language is indicative of the fact that, according to Ecuadorian officials familiar with the negotiations, the text of the agreement was non-negotiable. Thus, the only area in which Ecuadorian envoys were able to influence the final form that the treaty assumed was in the footnotes.59 In comparison to attempts to persuade other countries in the Andean region to adhere to UPOV 1991 – as illustrated in the cases of Chile, Peru, and Colombia – the footnote in the European Union–Ecuador agreement appears to be a small but significant victory for the Ecuadorian negotiators. Few other Latin American countries have successfully secured an exception to the obligation to join UPOV 1991 that free trade agreements regularly contain. Nevertheless, the ambiguity in the language about the relevant version of the UPOV Act to which Ecuador must adhere means that it is unclear if, and if so, when the country might be required to revise its national system of intellectual property for plants. Depending on how the free trade agreement with the European Union is interpreted and enforced, Ecuador might be required to reform its plant breeders’ rights legislation to ensure compliance with UPOV 1991. If this were to occur, certain provisions of the country’s current regime, which is based essentially on UPOV 1978 but also contains several sui generis elements, would likely need to be revised. For instance, the exceptions to the exclusive rights granted to plant breeders60 and the duration of exclusivity granted to protected varieties61 specified in the Ingenios Act would need to comply with Article 15(2) and Article 19(2) of UPOV 1991, respectively. Chapter 6 will discuss these provisions in detail, focussing particularly on the consistency between the Ingenios Act and the UPOV Convention. An additional international commitment that Ecuador has undertaken to govern human-plant interactions in the form of intellectual property is sourced in the participation of the country in the Andean Community (la Comunidad Andina). The Andean Community is a regional body “voluntarily united with the objective of achieving integral, more balanced, and autonomous development,”62 comprised of Bolivia, Colombia, Ecuador, and Peru. In 1993, the Andean Community enacted Decision 345, which established a legal regime for plant breeder’s rights to which all Community members must adhere.63 Decision 345 amalgamated provisions from the 1978 and 1991 Acts of the UPOV Convention, but the framework officially conforms to UPOV 1978.64 The various overlapping international obligations to which Ecuador is subject that influence the governance of plants as intellectual property in the country

Universalising an instrumental approach  71 are shown in Figure 3.2. As can be seen in this figure, the TRIPS Agreement establishes the general obligation to provide some form of intellectual property for plants. Meanwhile, Ecuador is also legally bound to recognise a form of plant breeders’ rights consonant with the UPOV Convention, based on its participation in both the Andean Community and the European Union–Ecuador free trade agreement. Together, these commitments circumscribe the policy space available to Ecuador to experiment with the design of an innovative system of intellectual property for plants. The free trade agreements between the United States and the European Union on the one hand, and countries from the Andean region of South America on the other, represent overt external forces that affect the making of national legislation to render plants as objects of intellectual property. Furthermore, negotiations towards trade agreements are often infused with covert influences, such as behind-the-scenes pressures that each party exerts as bargaining tactics. In some instances, these “soft” forces do not operate in a clandestine manner, such that the existence of outside pressure is obvious. This is the case with the Special 301 Report that the United States publishes annually as a means to officially discredit its trading partners’ practices in relation to the protection of intellectual property. Dynamics that are internal to the negotiating parties’ respective governments also contribute to the obligations that free trade agreements establish. For instance, the ability of local interest groups to effectively influence the legislative process can result in the adoption of a particular model of intellectual property for plants at the national level, which, in turn, can shape that country’s foreign

TRIPS

Requires intellectual property protection for plant varieties.

UPOV 78

Establishes minimum standards for plant breeders' rights

CAN Based on UPOV 1978 + some provisions from UPOV 1991

EU FTA

Requirement to ratify UPOV 1991 in the future?

Figure 3.2 International Agreements that Affect Lawmaking in Ecuador.

72  Governance of human-plant interactions policy. In countries whose agricultural sectors are industrialised, in which the majority of planting material is purchased from commercial firms that employ professional breeders, lobbyists have been able to convince their political representatives that a system of plant breeders’ rights based on the UPOV Convention is in the national interest. In other countries, civil society actors have spearheaded popular mobilisations that have convinced their governments to reject the UPOV model.65 Despite the nuances that differentiate free trade agreement negotiations from one country to another, the basic story in Chile, Colombia, Peru, and Ecuador is remarkably similar. In fact, this narrative has become ubiquitous throughout the world. The United States has executed trade treaties with multiple other countries, most of which are smaller in measures of economy, territory, and population. This has occurred especially in Latin America, but the United States government has also been involved in negotiations with countries in other world regions (see Appendix A, Table A.5). Essentially all of these agreements have required adhesion to UPOV 1991.66 However, as of 2019, several parties to the trade agreements with the United States had failed to meet the specified timeline to comply with UPOV 1991, possibly due to internal disagreements over the desirability of implementing a national law based on this framework.67 Like the United States, European intergovernmental institutions have spearheaded numerous negotiations, the aim of which was to execute trade-related treaties, with countries throughout the world. For instance, in October 2008, the European Union executed an Economic Partnership Agreement with a group of countries in the Caribbean region.68 The “CARIFORUM” States that are party to this treaty are mostly small island nations, and all are classified as developing countries.69 The European Union–CARIFORUM Agreement does not explicitly require signatories to join the 1991 Act of the UPOV Convention. However, the treaty does mandate that all parties “provide for the protection of plant varieties in accordance with the TRIPS Agreement” and that they “shall consider acceding to…UPOV (Act of 1991).”70 Thus, the European Union–CARIFORUM Agreement affords parties a measure of flexibility to develop non-UPOV sui generis regimes that would satisfy the TRIPS Agreement obligation to provide a form of intellectual property protection for plants. However, similar policy space is not available in the free trade agreements that the European Union and the European Free Trade Association have signed with many other governments. Over the past two decades, these European intergovernmental institutions have executed various kinds of commercial treaties with countries located in Africa, Central Asia, Eastern Europe, the Middle East, and South Asia (Appendix A, Table A.5). All of these instruments required that the parties comply with UPOV 1991, typically within three to five years after the date on which the agreement entered into force. Although the United States and the Europe are the territories that have acted as the most ardent proponents of the execution of bilateral, regional, and trans-regional free trade agreements, other monetarily wealthy, industrialised nations have engaged in similar activities. For instance, Australia finalised a trade

Universalising an instrumental approach  73 agreement with Chile in 2009 that required accession to UPOV 1991,71 and in 2019, Australian delegates continued to negotiate similar prospective treaties with Peru and Indonesia. Likewise, by 2019, Japan had free trade agreements in place with Chile,72 Indonesia,73 and Vietnam,74 all of which required the legal inscription of plants as objects of intellectual property, according to the UPOV 1991 model. A world map displaying the various bilateral and regional trade agreements that the United States has executed with other countries is shown in Appendix B, Figure B.1. A similar map displaying the agreements finalised between the European Union and other governments appears in Appendix B, Figure B.2. Finally, membership in two major trans-regional free trade agreements that contain terms requiring adhesion to the UPOV Convention is displayed in Appendix B, Figure B.3. These figures demonstrate that the United States has mainly pursued free trade agreements whose terms require adherence to the UPOV Convention with countries located in Latin America, and to a lesser extent, East and Southeast Asia and the Middle East. Meanwhile, European free trade agreements with UPOV-related provisions have been signed with numerous countries located in Latin America, North Africa, and the Eastern Mediterranean. Finally, the major trans-regional free trade agreements predominantly bind countries in the Pacific Rim and Asia. It is notable that as of 2019, one of the trans-regional agreements that is displayed in Appendix B, Figure B.3 had not yet been signed: namely the RCEP. Although this agreement was still under negotiation at the time of writing, the parties expected that the treaty would be executed in 2020.75 The potential impact of the RCEP is significant, given that it would bind nearly every country in Asia to the 1991 Act of the UPOV Convention.76 The affected territories could include China and India, both of which are home to hundreds of millions of farmers, most of whom operate on a small scale. However, it is notable that India refused to agree to the proposed terms of the RCEP that were discussed during a November 2019 summit, reportedly based on concerns that the agreement would undermine the Indian manufacturing industry.77 Concomitant with the conceptual expansion and global extension of laws granting intellectual property for plants, in recent decades several other international treaties related to the governance of agriculture and other human uses of non-human biological and genetic materials have entered into force. For example, important frameworks have set standards for the protection of customary agricultural practices, the procurement, utilisation, and circulation of biological and genetic materials, the conservation of biodiversity, and the rights of Indigenous and other Local Peoples. Relevant multilateral instruments include especially the Convention on Biological Diversity (CBD, 1993) and its Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (“Nagoya Protocol,” 2014), and the International Treaty on Plant Genetic Resources for Food and Agriculture (“Plant Treaty,” 2004). These various biodiversity treaties are often conceived as occupying one side of a binary, in opposition to international agreements such as TRIPS and the

74  Governance of human-plant interactions UPOV Convention. In other words, critics of the conception of plants as proprietary legal objects have expressed hope that frameworks like the Nagoya Protocol and the Plant Treaty could counterbalance the universalisation of the UPOV model of intellectual property for plants. This could be done, for instance, by supporting alternative approaches to the governance of human-plant relations, such as through agroecological cultivation practices. However, analyses that rely on a theoretical dichotomy between modern/industrial/capitalist agriculture – supported by legal regimes including the TRIPS Agreement and the UPOV Convention – and customary/peasant/agroecological farming – towards which laws such as the Plant Treaty aspire – miss the larger picture. That is, all of these approaches to the utilisation of plants are anthropocentric, presuming a relationship between human and vegetal life that is rational in nature and essentially instrumental in application. Although it is true that the making of international agreements, including the CBD, the Nagoya Protocol, and the Plant Treaty, was, in some ways, a response to the increasing corporatisation and proprietisation of agriculture beginning especially in the 1980s, many of the fundamental assumptions made in these frameworks mirror those of intellectual property laws. That is, all of these legal instruments generally conceive of plants as “resources,” as objects with economic value that should be protected based on their usefulness to humans. The next chapter will describe how the three most important global biodiversity treaties came into being, and how they alternately overlap with and diverge from the dominant legal paradigm for the regulation of vegetal life, namely the UPOV Convention. An understanding of these dynamics is necessary to complete the contextualisation of the story that this book relates, because Ecuador – like many other countries – is legally bound to numerous international laws that set the terms for human-plant interactions. The nuanced differences between these various regimes create challenges for lawmakers, who often find themselves subjected to conflicting and sometimes contradictory obligations.

Notes

Universalising an instrumental approach  75

7

8 9

10

11 12 13 14 15 16 17 18

19 20

UPOV? Economic and Political Weekly, 34 (52), 3661–3667; The Crucible II Group. (2001). Seeding Solutions, Vol. 2: Options for National Laws Governing Control Over Genetic Resources and Biological Innovations. Ottawa, Canada: International Development Research Centre. pp. 138–139; Dhar, B. (2002). Sui Generis Systems for Plant Variety Protection: Options under TRIPS. Geneva, Switzerland: Quaker United Nations Office; Robinson, D. (2008). Sui Generis Plant Variety Protection Systems: Liability Rules and Non-UPOV Systems of Protection. Journal of Intellectual Property Law & Practice, 3 (10), 659–665; Correa, C. M., with contributions from Shashikant, S. and Meienberg, F. (2015). Plant Variety Protection in Developing Countries. A Tool for Designing a Sui Generis Plant Variety Protection System: An Alternative to UPOV 1991. Working paper published by the Association for Plant Breeding for the Benefit of Society (APBREBES) and its member organisations: Berne Declaration, The Development Fund, SEARICE and Third World Network; De Jonge, B. & Munyi, P. (2016). A Differentiated Approach to Plant Variety Protection in Africa. The Journal of World Intellectual Property, 19 (1–2), 28–52. Drahos, P. (2001). BITs and BIPs. The Journal of World Intellectual Property, 4 (6), 791–808; Jefferson, D. J. (2019). Plant Breeders’ Rights Proliferate in Asia: The Spread of the UPOV Convention Model. In K. Adhikari & D. J. Jefferson (Eds.) Intellectual Property Law and Plant Protection: Challenges and Developments in Asia. Abingdon, UK: Routledge. Tansey, G. & Rajotte, T. (Eds.) (2008). Future Control of Food: A Guide to International Negotiations and Rules on Intellectual Property, Biodiversity and Food Security. Ottawa, Canada: International Development Research Centre. Arup, C. (2008). TRIPS as Competitive and Cooperative Interpretation. In J. Malbon & C. Lawson (Eds.) Interpreting and Implementing the TRIPS Agreement: Is It Fair? Cheltenham, UK: Edward Elgar. p. 11. See also Sell, S. K. (2001). Post-TRIPS Developments: The Tension Between Commercial and Social Agendas in the Context of Intellectual Property. Florida Journal of International Law, 14, 193–216. Council for Trade-Related Aspects of Intellectual Property Rights. (12 June 2013). “Extension of the Transition Period under Article 66.1 for Least Developed Country Members.” World Trade Organization. Retrieved from https://www.wto.org/ english/tratop_e/trips_e/ta_docs_e/7_1_ipc64_e.pdf (accessed 11 December 2019). This number is based on a count of the 193 countries recognised by the United Nations and its two observer States (Palestine and Vatican City), in addition to Taiwan and Kosovo, which many other countries recognise as independent nations. The Biodiversity Act of Bhutan. (2003). Chapter 3. Proclamation No. 481/2006: Plant Breeders’ Rights Proclamation, Ethiopia. (2006). Draft Law on New Plant Variety Protection of Myanmar. (2017). Note, however, that this situation will change for Malaysia as soon as it ratifies the CPTPP. K. Adhikari & D. J. Jefferson (Eds.) Intellectual Property Law and Plant Protection: Challenges and Developments in Asia. Abingdon, UK: Routledge. Ley No. 19.342. (17 de octubre de 1994). Biblioteca del Congreso Nacional de Chile, available in English at http://www.wipo.int/wipolex/en/details.jsp?id=807 (accessed 11 December 2019). UPOV. (2019). “Members of the International Union for the Protection of New Varieties of Plants. Status on November 1, 2019.” UPOV Publication No. 423. Retrieved from http://www.upov.int/export/sites/upov/members/en/pdf/pub423. pdf (accessed 11 December 2019). Jefferson, D. J. (2014). Development, Farmers’ Rights, and the Ley Monsanto: The Struggle Over the Ratification of UPOV 91 in Chile. IDEA – The Intellectual Property Law Review, 55 (1), 31–104. Agreement establishing an association between the European Community and its Member States, of the one part, and the Republic of Chile, of the other part.

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21 22 23 24

25 26 27

28

29

30

31

32

33 34

35 36

November 18, 2002. 2002 O.J. (L352)3. Retrieved from http://ec.europa.eu/ world/agreements/downloadFile.do?fullText=yes&treatyTransId=879 (accessed 11 December 2019). Id. at Art. 170(a)(v). United States-Chile Free Trade Agreement (FTA) (1 January 2004). Retrieved from http://www.ustr.gov/trade-agreements/free-trade-agreements/chile-fta (accessed 11 December 2019). Id. at Art. 17.1.3(a). Agreement Between Japan and the Republic of Chile for a Strategic Economic Partnership, March 27, 2007. Chapter 13, Article 162. Retrieved from http://www. wipo.int/wipolex/en/other_treaties/text.jsp?file_id=225073 (accessed 11 December 2019). Australia-Chile Free Trade Agreement, March 6, 2009. Article 17.4(1)(c). Retrieved from http://www.dfat.gov.au/trade/agreements/aclfta/Documents/Australia-ChileFree-Trade-Agreement.pdf (accessed 11 December 2019). Comprehensive and Progressive Agreement for Trans-Pacific Partnership, incorporating the provisions of the Trans-Pacific Partnership Agreement (TPP), February 4, 2016. Article 18.7(2)(d). Message of the President of the Republic to Initiate a Project in Accordance with the Approval of the International Convention for the Protection of New Varieties of Plants of December 2, 1961, Revised in Geneva through the Act of March 19, 1991 (Message No. 1435-356). Senate of Chile, Bulletin 6355-01 (July 7, 2013). Retrieved from http://www. senado.cl/proyecto-que-regula-obtenciones-vegetales-surgen-dudas-en-materia-dederechos-de-pequenos-agricultores/prontus_senado/2013-07-30/121930.html (accessed 11 December 2019). See “Double Citizen Triumph: Monsanto Law and UPOV 91 Convention Withdrawn.” (18 March 2014). El Ciudadano. Retrieved from http://www.elciudadano. cl/2014/03/18/103121/doble-triunfo-ciudadano-ley-monsanto-y-convenioupov-91-en-retirada-2 (accessed 11 December 2019). Office of the United States Trade Representative. “2019 Special 301 Report.” Retrieved from https://ustr.gov/sites/default/files/2019_Special_301_Report.pdf (accessed 11 December 2019); United States Department of Agriculture (USDA) Foreign Agricultural Service GAIN Report (November 2016) Agricultural Biotechnology Situation in Chile 2016. GAIN Report Number: CI1631. See, e.g., Sepúlveda, L. (1 de junio de 2016). “La Ley Monsanto y el Acuerdo de las Transnacionales.” El Clarin. Retrieved from http://www.elclarin.cl/web/opinion/ politica/19191-la-ley-monsanto-y-el-acuerdo-de-las-transnacionales-el-tpp.html (accessed 11 December 2019). Office of the United States Trade Representative. “Colombia FTA Final Text,” Chapter 16, Art. 16.1(3)(c). Executive Office of the President. Retrieved from http:// www.ustr.gov/trade-agreements/free-trade-agreements/colombia-fta/final-text (accessed 11 December 2019). Ley No. 1518, Congreso de la República de Colombia. (13 de abril de 2012). Retrieved from http://wsp.presidencia.gov.co/Normativa/Leyes/Documents/ley1518 13042012.pdf (accessed 11 December 2019). Comunicado No. 50, Corte Constitucional de la República de Colombia. (5–6 de diciembre de 2012). Retrieved from http://www.corteconstitucional.gov.co/ comunicados/No.%2050%20comunicado%2005%20y%2006%20de%20diciembre%20 de%202012.php (accessed 11 December 2019). Id. United States Department of State. (2018). “Colombia: 2018 Investment Climate Statements Report.” Retrieved from http://www.state.gov/e/eb/rls/othr/ics/

Universalising an instrumental approach  77

37

38

39 40 41

42 43 44

45

46 47 48 49 50 51 52

investmentclimatestatements/index.htm?year=2018&dlid=281739 (accessed 11 December 2019). Office of the United States Trade Representative. “2019 Special 301 Report.” Retrieved from https://ustr.gov/sites/default/files/2019_Special_301_Report.pdf (accessed 11 December 2019); Office of the United States Trade Representative. “2018 Special 301 Report.” Retrieved from https://ustr.gov/sites/default/files/301/ 2017%20Special%20301%20Report%20FINAL.PDF (accessed 11 December 2019); Office of the United States Trade Representative. “2014 Special 301 Report.” Retrieved from https://ustr.gov/sites/default/files/USTR%202014%20Special%20 301%20Report%20to%20Congress%20FINAL.pdf (accessed 11 December 2019). Ministerio de Comercio Exterior y Turismo del Perú. “Acuerdos Comerciales del Perú: TLC Perú-EEUU.” Retrieved from http://www.acuerdoscomerciales.gob.pe/ index.php?option=com_content&view=category&layout=blog&id=55&Itemid=78 (accessed 11 December 2019). Acuerdo de Promoción Comercial Perú-EE.UU., Art. 16.1(3)(c). UPOV. (8 July 2011). “Peru Accedes to the UPOV Convention.” UPOV Press Release No. 86. Retrieved from https://www.upov.int/edocs/pressdocs/en/upov_ pr_086.pdf (accessed 11 December 2019). Berne Declaration. (2015). Owning Seeds, Accessing Food: A Human Rights Impact Assessment of Plant Variety Protection. Zurich: Berne Declaration, Bread for the World – Protestant Development Service, Community Technology Development Trust (CTDT), Development Fund – Norway, Misereor, Searice, Third World Network. Id. Decreto Supremo que aprueba el Reglamento de Protección a los Derechos de los Obtentores de Variedades Vegetales. Decreto Supremo No. 035–2011-PCM. Art. 16. Note that the Peruvian framework prohibits the exchange and sale of protected seeds by farmers, while the use of harvested products (i.e. farm-saved seeds) is allowed so long as the seeds have been obtained on the farmers’ own holdings and are used on their own holdings. Id. Salazar, R., Louwaars, N. P., & Visser, B. (2006). On Protecting Farmers’ New Varieties: New Approaches to Rights on Collective Innovations in Plant Genetic Resources. CGIAR Systemwide Program on Collective Action and Property Rights, CAPRi Working Paper No. 45. p. 13. Berne Declaration, supra note 41. Id. The Office of the United States Trade Representative. “Peru and Ecuador to Join with Colombia in May 18–19 Launch of FTA Negotiations with the United States.” (3 May 2004). International Centre for Trade and Sustainable Development (ICTSD). “TLC Ecuador – EEUU: negociación se complica por Ley de Hidrocarburos.” Puentes (11 April 2006). Coral, M. L. (2013). “Ecuador-Unión Europea: Lógicas de Una Negociación Inconclusa. Friedrich, Ebert, Stiftung Foundation.” Retrieved from http://library.fes.de/ pdf-files/bueros/quito/10376.pdf (accessed 11 December 2019). “Rafael Correa: Ecuador no Firmará un Tratado de Libre Comercio con la Unión Europea.” LibreRed. (22 de enero de 2014). Retrieved from http://www.librered. net/?p=31786 (accessed 11 December 2019). Sanmartín Rodríguez, L. (24 de marzo de 2014). “Ecuador y la UE Retoman Negociación con Expectativas en Propiedad Intelectual, Contratación Pública y Aranceles.” SR Radio. Retrieved from https://www.srradio.com.ec/ecuador-y-la-ue-retomannegociacion-con-expectativas-en-propiedad-intelectual-contratacion-publicay-aranceles/ (accessed 11 December 2019).

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Universalising an instrumental approach  79

4

The logic of plant genetic resources

In the 1980s, as the notion that plants should be conceived as objects of intellectual property increasingly spread around the world, various concerns had already been mounting for decades over the state of global biodiversity. Narratives of loss contributed to this apprehension, centring on the effect that the diminishing diversity of plant varieties and species would have on agriculture and food production.1 Augmenting these concerns was a growing sense that historical and contemporary flows of plant material around the world produced social and economic inequalities. Specifically, transfers of plant germplasm to “gene-poor” Europe and North America had enabled the development of robust agricultural industries and the accumulation of capital from the commercialisation of seeds and harvested materials in these regions, while the African, Asian, and Latin American “donors” of this genetic material perceived few if any benefits from this situation.2 Throughout human history, cultivated and wild plants were moved continuously from one location to another across the planet, a dynamic that accelerated beginning in the colonial period. During this era, the so-called “Columbian exchange” operated as a vehicle for the accumulation of monetary wealth in European metropolises, by transferring plantation crops between different tropical colonies to enable the production of commodities that were later consumed in colonial centres.3 The Columbian exchange was also characterised by the movement of food crops from the “Old World” to the “New,” a process that allowed colonists to retain their European diets rather than adapt to Indigenous food sources. In the late nineteenth and early twentieth centuries in post-colonial, settler societies such as the United States and Australia, this dynamic evolved into practices of “plant exploration” or “plant hunting,” which aimed to “discover” and introduce exotic germplasm from other countries to support nationalist agricultural development.4 After the Second World War, practices of collection, cataloguing, banking, transfer, development, and release of crop plants were consolidated and systematised across the world when industrial, philanthropic, scientific, and political interests converged to create the conditions for a “Green Revolution.” The principal funder for this work was the United States-based Rockefeller Foundation, which supported the establishment of international agricultural research centres

The logic of plant genetic resources  81 that were located in biodiverse countries such as Colombia,5 Mexico,6 Nigeria,7 and the Philippines8 but were staffed primarily by North American and European scientists.9 During this era, the yields of major food crops, including corn, wheat, and rice, were significantly enlarged through a combination of scientific breeding, irrigation, and the intensive application of agrichemicals.10 The Green Revolution is often associated with the outcomes that it produced, especially the development and release of new varieties of staple food plants. However, equally significant were the large-scale collection and evaluation of Indigenous germplasm, on which Green Revolution breeding programmes depended.11 As the activities of the international agricultural research centres accelerated in the 1960s and 1970s, scientists and science administrators became increasingly aware of a fundamental irony that resulted from their systematic crop genetic improvement efforts. That is, the tremendous success that the Green Revolution breeding programmes achieved in augmenting crop yields meant that improved plant varieties began to displace traditional cultivars, which, in turn, resulted in “genetic erosion” or the loss of the plant genetic diversity on which the global food supply depends.12

4.1 The end of the common heritage approach Concerns about genetic erosion and over how to manage plant collection, conservation, and exchange inspired the convening of a series of technical meetings and conferences under the auspices of the United Nations Food and Agricultural Organization (FAO) beginning in 1961. Subsequently, in 1967, the term “plant genetic resources” was officially endorsed for the first time at the International Conference on Crop Plant Exploration and Conservation, co-organised by the FAO and the International Biological Programme.13 This notion revealed the way of thinking about plants on which the Panel of Experts that met at the 1967 Conference relied. That is, the use of the word “genetic” indicated the importance of plants to humans as the fundamental inputs of plant breeding, which relied on “a steady flow of new germplasm”14 to provide a source of genes for resistance to pests and pathogens, and for the traits that make plants desirable as food, feed, or for other human uses.15 Meanwhile, the invocation of the word “resources” referred to the exchange value that plants had for the agricultural industry, which produces new plant varieties that are commercialised in markets worldwide. Thus, the concept of plant genetic resources encapsulated motivations that throughout the late 1960s and 1970s had catalysed a series of international actions to address the “growing alarm” over the replacement of landrace plant varieties that famers customarily cultivated with improved varieties that professional breeders developed.16 One of the most significant of these initiatives was the establishment in 1974 of the International Board for Plant Genetic Resources, whose purpose was to coordinate a universal plant genetic resources programme that would accelerate germplasm collection and build or expand national, regional, and international gene banks. However, despite the increased

82  Governance of human-plant interactions institutionalisation of activities to manage the procurement, circulation, use, and conservation of different kinds of agricultural plants, by the early 1980s, it became clear that a global framework was needed to clarify the legal status of plant genetic resources and to regulate the interests of various human actors in them. The first effort to codify a solution manifested in the form of a 1983 resolution that the FAO passed to adopt a non-binding agreement entitled the “International Undertaking on Plant Genetic Resources.” The objective of the resolution was to “ensure that plant genetic resources of economic and/or social interest, particularly for agriculture, will be explored, preserved, evaluated and made available for plant breeding and scientific purposes.”17 One of the most noteworthy aspects of the International Undertaking was its express recognition of the “universally accepted principle that plant genetic resources are the heritage of mankind and consequently should be available without restriction.”18 The official validation of this “common heritage” principle in the International Undertaking was significant for at least two reasons. First, the idea of common heritage had implicitly informed the diffusion of plants across the globe throughout human history,19 but it had never been explicitly recognised in an international legal instrument. Second, notwithstanding the deep roots of the principle, changes that had occurred during the twentieth century threatened to undermine the common heritage approach. Factors that complicated the free and open circulation of plant materials included genetic erosion and the germplasm collection efforts that arose in response. Meanwhile, the development of new agricultural technologies as products of the industrial, Green, and biotechnological revolutions led to the increase in the financial value of specific germplasm, the maximisation of which was enabled through the concretisation of laws that transformed plants into objects of intellectual property.20 Collectively, these dynamics meant that it became increasingly difficult to regulate the utilisation and circulation of plants according to the common heritage principle, because in some cases, universal, free access to plants was creating or exacerbating social problems. The term “biopiracy” synthesised many of the pertinent concerns, reflecting growing frustrations about the appropriation and monopolisation of Indigenous and local agricultural knowledge, in addition to the privatisation of the plants on which this knowledge was based.21 The dynamic of biopiracy was typically characterised as the flow of biodiversity from the global “South” to industrial actors in the “North,”22 which was formalised when plants conceived as common heritage resources were extracted from one part of the world, and then formed the basis for intellectual property claims in another. The International Undertaking was intended to disrupt this situation by limiting the privatisation of plant germplasm. The resolution controversially declared that signatory governments must make plant genetic resources available “free of charge” for the purposes of scientific research, plant breeding, or genetic resource conservation.23 Despite the ambitions of certain FAO members to restrict the scope of intellectual property for plants, the reaffirmation of the common heritage principle

The logic of plant genetic resources  83 in the International Undertaking proved to be short-lived. As soon as the initiative was adopted, eight industrialised countries officially lodged reservations in protest of its provisions.24 Representatives of these governments were concerned that the declaration in the International Undertaking that plant genetic resources must be available free of charge would amount to a taking of intellectual property held by private plant breeders. As Kloppenburg and Kleinman (1987) observed, “Many politicians, scientists, and business interests in the industrialized North have viewed [the] Third World position at the FAO as an assault on private property and as an attempt to politicize science.”25 The clash between biologically rich developing countries and monetarily wealthy industrialised States resulted in an impasse over the adoption of a binding legal framework for the governance of plant genetic resources for the next several years. A compromise was finally reached in 1989, when another FAO Conference adopted the “Agreed Interpretation of the International Undertaking.” The Agreed Interpretation declared that international law would continue to conceive of plant genetic resources as the common heritage of humankind, but that “plant breeders’ rights as provided for under UPOV…are not incompatible with the International Undertaking.”26 This meant that any country that adhered to the International Undertaking “may impose only such minimum restrictions on the free exchange” of plant genetic materials “as are necessary for it to conform to its national and international obligations.”27 These provisions effectively subordinated the International Undertaking to national-level intellectual property laws for plants, and to the UPOV Convention model of plant breeders’ rights at the international level. The Agreed Interpretation also explained that “the term ‘free access’ does not mean free of charge,”28 indicating that intellectual property owners could make germplasm transfer contingent on the payment of royalties or other fees by the prospective user. The limitations that the Agreed Interpretation placed on the definition of common heritage substantially weakened this approach to the governance of plant genetic resources, leading to its abandonment in pursuit of a new strategy. When it met again in 1991, the FAO Conference decided to amend the International Undertaking, this time endorsing the idea that nation-states would have sovereign rights over the plant genetic resources located in their respective territories.29 Like the common heritage principle, the idea of national sovereignty was controversial. At the time, biologically rich but economically poor countries largely remained committed to the common heritage principle, arguing that following this approach would enhance access to improved plant varieties, which were often privately owned as intellectual property.30 However, this perspective shifted following a series of dialogues that international non-governmental organisations convened in the early 1990s, leading to a consensus among FAO members that individual countries should have sovereignty over all plant genetic resources that fall under their national jurisdictions.31 Notwithstanding this agreement, by 1992 the FAO still had not been able to generate a binding legal instrument that would obligate signatories to follow the national sovereignty approach. Thus, attention began to shift to initiatives

84  Governance of human-plant interactions that other United Nations groups were spearheading. One of these, namely the United Nations Environment Programme, had convened an “Ad Hoc Working Group of Experts on Biological Diversity” in 1988. This group developed a draft agreement that elaborated terms related to the conservation and “sustainable use” of biological diversity, following the approach that the amended version of the International Undertaking had articulated, namely that States have sovereign rights over their own biological resources.32 The final draft of the agreement was released at a May 1992 conference in Nairobi, and the following month the text of the Convention on Biological Diversity was opened for signature at the United Nations Conference on Environment and Development (the Rio “Earth Summit”). The CBD entered into force in December 1993, and by 2019, all of the countries in the world had joined the Convention, except for Vatican City and, notably, the United States. Thus, over the past quarter century an approach to the governance of plant materials that had endured in human societies for millennia was formally abandoned.

4.2 The emergence of the global biodiversity treaties The Convention on Biological Diversity was a significant milestone in international lawmaking, not only because it officially overruled the common heritage principle, but also because it purported to cover the governance of all elements of biological diversity. This meant that the CBD did not solely focus on regulating how the various human individuals and institutions that participate in agricultural and food production value chains may use plants conceived as genetic resources. Instead, the Convention announced three essential objectives, namely: (1) the conservation of biological diversity; (2) the sustainable use of the components thereof; and (3) the equitable sharing of benefits arising from the utilisation of genetic resources.33 The purpose of this third objective was, in part, to address one of the major criticisms that had emerged in the 1980s in response to the expansion of intellectual property for plants. The critique is captured in a 1989 Annex to the International Undertaking, which acknowledged that the majority of plant genetic resources used contemporarily for breeding purposes “come from developing countries, the contribution of whose farmers has not been sufficiently recognised or rewarded.”34 Furthermore, “farmers, especially those in developing countries, should benefit fully from the improved and increased use of the natural resources they have preserved.”35 By the time that the CBD was opened for signature in 1992, the notion of “farmers’ rights” was gaining traction, both as a strategy to support in-situ conservation of plant germplasm and as a means to compensate farmers for their contributions to crop genetic development.36 Although the CBD did not embrace the concept of farmers’ rights, the treaty did elaborate a basic framework for what came to be known as “access and benefit sharing.” Thus, the CBD recognised that individual countries have discretion to delimit conditions under which genetic resources may be accessed from sites located within their national jurisdictions. However, the Convention

The logic of plant genetic resources  85 also stipulated certain minimum conditions that signatory governments must include in domestic access and benefit sharing laws. The first of these was the requirement that prospective users of genetic resources obtain “prior informed consent” from the resource providers.37 Furthermore, prospective users would need to negotiate and conclude an agreement with the resource provider that would contain “mutually agreed terms,” including provisions for the “fair and equitable sharing” of any benefits that users may derive from the utilisation of the resource.38 In theory, the inclusion of access and benefit sharing provisions in the CBD represented a victory for peasant farmers and Indigenous communities, given that the interests of these groups previously had been marginalised or ignored in international legal regimes. However, in practice governments struggled to understand the meaning and implications of the access and benefit sharing terms following the entry into force of the Convention in 1993. Nearly 15 years later, by 2007, only 39 (approximately 20 per cent) of the 189 countries which at that time were members of the CBD had enacted domestic legislation to implement the provisions of the treaty.39 Concerned that this situation was enabling historical injustices to be perpetuated, an alliance of “Like Minded Mega-Diverse Countries” formed a working group at the World Summit on Sustainable Development in Johannesburg in 2002. During the Summit, the “Johannesburg Plan of Implementation” was elaborated, the essential aim of which was to establish an international regime to “promote and safeguard” the fair and equitable sharing of benefits arising out of the utilisation of genetic resources.40 Following the World Summit on Sustainable Development, the Johannesburg Plan of Implementation was considered and adapted every two years during the biannual meetings of the Conference of the Parties to the Convention on Biological Diversity. These events took place in Kuala Lumpur (2004), Curitiba (2006), and Bonn (2008), and after each conference, statements were issued that invited CBD member countries and other relevant stakeholders to participate in the process of negotiation and elaboration of an international regime designed specifically to regulate access and benefit sharing. Finally, at its tenth meeting in 2010, the Conference of the Parties agreed to adopt the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (the “Nagoya Protocol”).41 The Nagoya Protocol required signatories to enact domestic laws that would make access to genetic resources contingent on obtaining prior informed consent or approval from resource providers. The Protocol further stipulated that if Indigenous or other traditional local communities have “the established right to grant access” to genetic resources, then prospective users must seek prior informed consent directly from these groups.42 After obtaining consent to collect the desired genetic resource, providers and users would need to negotiate and execute an access agreement containing terms related to benefit sharing. The agreement should also include language about dispute resolution and ownership of any intellectual property implicated in the use of the genetic resource at issue,

86  Governance of human-plant interactions in addition to provisions on how to deal with any subsequent, third party utilisation of the resource and how to manage possible changes of intent related to resource use.43 Another important reform that the Nagoya Protocol introduced was its express recognition that “traditional knowledge” is often associated with the usage of genetic resources. Thus, the Protocol required that member countries “take into consideration Indigenous and local communities’ customary laws, community protocols, and procedures” when framing national systems for access and benefit sharing.44 This meant that domestic laws designed to implement the Nagoya Protocol should include traditional knowledge within the ambit of access and benefit sharing. Specifically, countries should support efforts by Indigenous and other Local Peoples to establish their own community protocols for access and benefit sharing; to set minimum requirements for mutually agreed terms; and to design model contractual clauses for benefit sharing.45 Although the Convention on Biological Diversity and the Nagoya Protocol together formed an international legal basis that recognised the contributions that Indigenous and other Local Peoples make to germplasm conservation and development, these regimes did not specifically address how farmers may access and use the plants that they cultivate. This is the case even though beginning with the 1989 Annex to the International Undertaking, the United Nations formally recognised farmers’ historical and ongoing contributions to the vitality of agrobiodiversity as stewards and developers of plant genetic resources. The International Undertaking therefore had endorsed the concept of farmers’ rights, which it defined as a set of guarantees “arising from the past, present, and future contributions of farmers in conserving, improving, and making available plant genetic resources.”46 However, for nearly a decade, efforts to generate a binding international instrument to protect farmers’ rights languished. This stagnation occurred even as advocates continued to call for the legal recognition of farmers’ rights as a means to counterbalance the expanded objectification of plants as intellectual property, as required by various international commercial agreements.47 The situation began to change in 1996, when representatives of 150 countries endorsed the “Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture” at the Fourth International Technical Conference on Plant Genetic Resources that the FAO convened in Leipzig, Germany. The Global Plan of Action mirrored the objectives of the CBD, aiming to ensure the conservation of plant genetic resources for food and agriculture; to promote the sustainable use of these resources; and to promote a system for the fair and equitable sharing of benefits arising out of the use of plant genetic resources for food and agriculture. The Global Plan of Action also included the use of traditional knowledge, innovations, and practices relevant to the conservation and sustainable use of plant genetic resources within its scope of protection.48 Finally, the framework advanced the idea that farmers have individual and collective rights “to have non-discriminatory access to germplasm, information, technologies, financial resources and research and

The logic of plant genetic resources  87 marketing systems necessary for them to continue to manage and improve genetic resources.”49 Notwithstanding the broad ambitions of the Global Plan of Action, it took another five years before its framework would be codified. The result was the International Treaty on Plant Genetic Resources for Food and Agriculture (the “Plant Treaty”), which was adopted at the FAO Conference in 2001 and took effect in 2004. The Plant Treaty endeavoured to fill several gaps in international jurisprudence that persisted following the entry into force of the CBD. These included providing protections for farmers’ rights and outlining a system of governance for particular categories of plant genetic resources that were excluded from the scope of the CBD, such as germplasm that was collected prior to 1993 and held in ex-situ collections.50 Like the Global Plan of Action, the fundamental aims of the Plant Treaty included to promote the conservation and sustainable use of plant genetic resources for food and agriculture, and the fair and equitable sharing of any benefits obtained from utilising these resources.51 The benefit sharing objective of the Plant Treaty was intended to be fulfilled by granting three expressly enumerated “farmers’ rights.” These included (1) the protection of traditional knowledge related to plant genetic resources for food and agriculture; (2) the guarantee of equitable participation in any benefits arising from the utilisation of these resources by third parties; and (3) the right to participate in national-level decision making in matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.52 The Plant Treaty also recognised the implicit right of farmers to save, use, exchange, and sell farm-saved seed and propagating material “subject to national law and as appropriate.”53 Thus, the conceptualisation of farmers’ rights in the Plant Treaty contained four essential elements.54 However, it is important to note that the “implicit right” of farmers to save, use, exchange, and sell farm-saved seed was expressly limited in the Plant Treaty, such that countries may subordinate farmers’ rights to domestic intellectual property laws for plants. The embodiment of farmers’ rights in the Plant Treaty was also weakened by the non-binding nature of the framework, a situation that contrasts with global intellectual property regimes such as the TRIPS Agreement, which are enforceable.55 These limitations reveal why the governance of plant genetic resources has regularly been characterised as a “struggle” between plant breeders’ rights and farmers’ rights.56 Proponents of the legal inscription of the farmers’ rights concept have argued that the expansion of laws that transformed plants into objects of intellectual property – especially according to the UPOV 1991 plant breeders’ rights model – hampers the full realisation and implementation of the Plant Treaty. For instance, intellectual property laws for plants may curtail farmers’ ability to save, use, exchange, and sell farm-saved seeds and other propagating materials.57 However, it should be noted that this is only the case for seeds and propagating materials from plant varieties that have been protected as intellectual property. In other words, plant breeders’ rights systems based on the UPOV Convention do not affect how farmers manage the germplasm of plants that have not been

88  Governance of human-plant interactions privatised. These may include landrace varieties and wild plants, or formerly proprietary plant varieties that have entered into the public domain after the expiration of intellectual property protection. Nevertheless, there are other reasons that help to explain why the UPOV Convention may conflict with the farmers’ rights protections that the Plant Treaty enumerated. For instance, plant breeders’ rights laws that are designed to comply with UPOV cannot require disclosure of the origin of any genetic resources or traditional knowledge used to obtain the claimed plant variety as a condition that applicants must fulfil to receive intellectual property. Furthermore, critics of the UPOV Convention have contended that the plant breeders’ rights model does not support the participation of farmers in policy decisions related to the governance of plant genetic resources as intellectual property.58 In response, the Council of UPOV has defended the Convention by repeatedly reaffirming that the UPOV system is concerned solely with new, distinct, uniform, and stable plant varieties that constitute objects of intellectual property protection. Moreover, UPOV representatives have reminded detractors that farmers are not required to grow proprietary varieties, while also arguing that the UPOV Convention does not affect the advancement of farmers’ rights as enshrined in other legal regimes.59 Whether or not certain aims and provisions of the global biodiversity treaties – namely, the CBD, the Nagoya Protocol, and the Plant Treaty – actually conflict with the UPOV Convention, it is notable that all of these frameworks treat plants as objects that have market value and that are subject to ownership by human individuals and institutions. Specifically, intellectual property regimes conceive of plants as exclusively owned economic goods. Meanwhile, by recognising the principle of national sovereignty, international instruments such as the CBD and the Plant Treaty regard plants as State property. Today, the only germplasm that is still regulated as the common heritage of humankind is from plants pertaining to the 35 species of staple food crops listed in Annex I of the Plant Treaty, provided that this germplasm is under the “management and control” of member countries’ governments and situated in the public domain.60 The approaches that the various international legal regimes have taken to the ownership of plants are shown in Table 4.1. The uncertainty over how countries will honour intersecting international obligations related to the utilisation of different kinds of plants by human individuals and institutions has become increasingly acute. This is because in recent years, numerous countries have adhered not only to the TRIPS Agreement and the UPOV Convention, but also to the CBD, the Nagoya Protocol, and the Plant Treaty. For instance, as of 2019, the CBD had 196 parties, encompassing nearly every country on Earth. Meanwhile, 146 countries had joined the Plant Treaty by 2019, while the Nagoya Protocol had 120 members. These numbers indicate that for many governments, multiple sometimes-overlapping, sometimes-diverging interests and obligations are important to consider when designing legal systems to regulate human-plant relationships.

The logic of plant genetic resources  89 Table 4.1 Approaches to Ownership of Plant Genetic Resourcesa Mechanism for Allocating Benefits

Ownership Approach Common Heritage

Property rights Sovereign (state-controlled)

Market-Based

Customary System

Regulated

1983 International Undertaking Plant Treaty (for the 35 staple food crops specified in the agreement)

1991 Amendment to International Undertaking CBD Plant Treaty (public domain, not on list of the 35 crops)

Private/ Community TRIPS Agreement UPOV Convention Plant Treaty (improved plants, not in public domain)

a This table has been adapted from Raustiala, K. & Victor, D. G. (2004). The Regime Complex for Plant Genetic Resources. International Organization, 58(2004), 277–309: 285.

For instance, all of the countries that were members of UPOV in 2019 also adhered to the CBD, except for the United States. Meanwhile, of the 95 countries that were bound to one of the two active versions of the UPOV Convention, 59 were also parties to the Nagoya Protocol, while 77 countries were members of both UPOV and the Plant Treaty. A list of the countries that are legally bound to both the UPOV Convention and the CBD, the Nagoya Protocol, and/or the Plant Treaty is displayed in Appendix A, Table A.6. As Table A.6 shows, in the domain of intellectual property for plants, Ecuador has assumed obligations under the TRIPS Agreement and the 1978 Act of the UPOV Convention. Furthermore, depending on how the terms of the free trade agreement that the country signed with the European Union in 2016 are interpreted, Ecuador may eventually be pressured to adhere to UPOV 1991. Meanwhile, in the realm of genetic resources governance, Ecuador joined the CBD in 1993, the Plant Treaty in 2004, and the Nagoya Protocol in 2017. Because of these various commitments, Ecuadorian lawmakers must balance several international obligations – not to mention various domestic interests – when determining how to order interactions between people and plants. The situation is analogous for many other countries. However, notwithstanding the real differences in objectives and scope that characterise the intellectual property agreements on the one hand and the biodiversity treaties on the other hand, these two basic categories of laws are not as divergent as previous interpretations have suggested. This is because all of the existing international regimes that govern relationships between human and vegetal beings tend to submit plants to instrumental, economic, and – whether explicitly or implicitly – proprietary logics.

90  Governance of human-plant interactions

4.3 The instrumental, economic, and proprietary logics of plant genetic resources International laws do not obscure the rationalities that imbue the concept of plant genetic resources. To the contrary, the three major biodiversity treaties – namely, the CBD, the Nagoya Protocol, and the Plant Treaty – all explicitly conceive of vegetal life in terms that are essentially instrumental and economic in nature. For its part, the CBD differentiated between two related notions: “biological resources” and “genetic resources.” The former was delineated to encompass the latter, such that the definition of biological resources in the CBD “includes genetic resources, organisms or parts thereof, populations, or any other component of ecosystems with actual or potential use or value for humanity.”61 Meanwhile, the Convention conceived of “genetic resources” as “genetic material of actual or potential value.”62 Both definitions are significant because they mean that non-human living organisms are only of interest for the purposes of conservation and sustainable use, as realised through access and benefit sharing activities, if they have value – implicitly economic in nature – and utility for human actors. The Nagoya Protocol maintained the definitions of biological and genetic resources that the CBD had adopted, thereby reinscribing the same instrumental and economic logics. Furthermore, the Plant Treaty also followed this anthropocentric approach, defining the concept “plant genetic resources for food and agriculture” as “any genetic material of plant origin of actual or potential value for food and agriculture.”63 These international legal conceptions of vegetal life have percolated down to the national level. For instance, the Ecuadorian regulatory framework for access and benefit sharing reiterates the CBD definitions of biological and genetic resources, such that the law is only interested in the “real or potential value or utility” that these objects have for human individuals and institutions.64 A further indication that international laws have followed an instrumental and economic approach to ordering human-plant relations is captured by the concept of “bioprospecting.” This term emerged in the late 1980s and early 1990s as a “blueprint” for implementing the access and benefit sharing provisions of the CBD.65 Simplistically, bioprospecting may be understood as “the exploration of nature for new products,”66 although in practice its implications are far more complex. This is because when plants or other living organisms are sought as the basis for the development of commodities that can be commercialised, questions of ownership are invariably implicated.67 Important inquiries relate to origin (From where are the materials sourced? Who has rights or interests in them?); derivation (How do new products relate to the original materials? Can these be protected as intellectual property?); and definition (Who qualifies as a provider of the materials? What traditional knowledge is implicated? What are the benefits that should be shared?). As a paradigm for the implementation of the access and benefit sharing principles that the CBD formalised and the Nagoya Protocol and the Plant Treaty

The logic of plant genetic resources  91 reinscribed, bioprospecting is predicated on proprietary relationships. In contrast to the common heritage approach to biodiversity governance, the bioprospecting model was enabled by the shift to national sovereignty, with individual countries explicitly owning the biological and genetic resources that are located within their borders. The CBD recognised that individual States have the authority to broker agreements with prospective users to grant access to these resources, applying market mechanisms to the acquisition of genetic material through a process of “ecoliberalisation.”68 In this way, the bioprospecting/ access and benefit sharing model was imagined as a means to achieve multiple goals, including economic growth and biodiversity conservation. The idea was that bioprospecting would allow countries to “draw more income from the wildlands without killing them, and so to give the invisible hand of free-market economics a green thumb.”69 Notwithstanding its apparent transversal appeal, the treatment of vegetal life in the global biodiversity treaties has not been universally embraced. One issue centres on the idea that a rationalist and individuated conception of property is incommensurable with Indigenous worldviews, which usually do not view plants in the same way as the international access and benefit sharing regime, that is, as economic objects.70 This is important, because throughout history, Indigenous peoples have accrued substantial knowledge about the usage of plants for agricultural and other purposes. Furthermore, reproaches of dominant legal models for ordering human-plant relationships have intertwined with critical analyses of the farmers’ rights concept, resulting in “seed wars”71 waged between industrial and customary forms of agriculture over different models for the control of plant germplasm. These debates have generally presumed a binary relationship between private ownership (as represented by intellectual property) and open access (as embodied in Indigenous and customary agricultural practices). Various proposals have been launched in recent decades to move “plant genetic resources for food and agriculture” or more specifically, seeds, out of the ambit of intellectual property and back into the public domain, or in other words, to revive the common heritage approach. Ideas range from the creation of institutional arrangements that would promote “common-pool resource” management72 to the generation of “open source” initiatives for seeds73 to the reconfiguration of the Multilateral System of the Plant Treaty in a way that would support an “effective global seed commons.”74 While the insights that these various critical analyses offer should be taken seriously, they, like the intellectual property paradigms that these proposals often deride, tend to view plants instrumentally. Notwithstanding their differences in objectives and scope, intellectual property laws, the global biodiversity treaties, and the most prominent proposals to reform both types of frameworks share certain commonalities. First, these approaches are all fundamentally anthropocentric, focussing on the utility of vegetal life to support human activities, such as agriculture and the production of food, fuel, and medicine. Second, under extant laws and proposed reforms alike, vegetal beings are understood as objects that have value, calculated based

92  Governance of human-plant interactions on their utility to humans rather than on their intrinsic worth as living subjects. Third, this value is translated into economic terms, to enable human-to-human exchanges of plant materials. While the facilitation of economic relations in markets is an explicit aim of intellectual property laws for plants, this logic has been implicitly extended to the systems to govern access and benefit sharing that the three major biodiversity treaties have delineated. Furthermore, although proposals to create an agricultural commons reject the subjection of seeds to market-based principles, they still assume that goods with anthropocentric value will be transacted between different human actors to fulfil purposes that advance human interests. Moreover, all of the existing international legal strategies to govern vegetal life that this book has reviewed objectify plants in a way that relies on the identification, procurement, and movement of discrete things in the world. This is far from the kind of “plant-thinking” described in Chapter 1, which would try to approach the regulation of human-plant interactions based on a genuine attempt to appreciate the special subjectivity of vegetal beings, the nature of which is fundamentally sessile and distributed. In the context of the theoretical and historical framings presented throughout the first four chapters of this book, we can now ask, what, exactly, would an ecological turn in the law entail? More specifically, how might intellectual property laws that conceive of plants as objects of exclusive human ownership expand their conceptual foundations to incorporate different understandings of the nature of vegetal life? For answers, we can now turn to an exploration of recent experiments with innovative, eco-centric lawmaking in Ecuador. Although the examination of the recent history of lawmaking in Ecuador will not necessarily resolve all of the questions posed in this book, the following chapters will provide a basis for reflection, a template for law reform, and an inspiration for future attempts to reorder human-plant relationships.

Notes 1 Fowler, C. & Mooney, P. (1990). The Threatened Gene: Food, Politics, and the Loss of Genetic Diversity. Cambridge, UK: Lutterworth Press. 2 Mooney, P. (1983). The Law of the Seed: Another Development and Plant Genetic Resources. Development Dialogue, 1–2. 3 Kloppenburg, J. R. (1990). First the Seed: The Political Economy of Plant Biotechnology. Cambridge, UK: Cambridge University Press. pp. 152–157; Crosby, A. W. (2003). The Columbian Exchange: Biological and Cultural Consequences of 1492 (30th Anniversary Edition). Westport, CT: Praeger Publishers. 4 Harris, A. (2015). Fruits of Eden: David Fairchild and America’s Plant Hunters. Gainesville, FL: University Press of Florida; Egli, R. (2018). The World of Our Dreams: Agricultural Explorers and the Promise of American Science 1890–1945. PhD Diss. University of California, Davis; Chacko, X. S. (2018). When Life Gives You Lemons: Frank Meyer, Authority, and Credit in Early Twentieth-Century Plant Hunting. History of Science, 56 (4), 432–469. 5 The relevant institution is the International Center for Tropical Agriculture (CIAT), founded in 1967.

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Part 2

Experimenting with an eco-centric approach An Ecuadorian story

5

Reconfiguring intellectual property in Ecuador

Over the past dozen years or so, what I have described as an eco-centric approach has manifested in various Ecuadorian lawmaking initiatives. Several of these legal reform projects have centred on policies that are relevant to the ordering of human-plant interactions. Therefore, although this book primarily focusses on analysing intellectual property law as a means to reimagine the dominant, instrumental approach to the governance of relationships between human and vegetal beings, other types of legal systems also form part of the discussion. These regimes include new laws related to the conservation of biodiversity, the circulation and commercialisation of seeds, the protection of traditional knowledge and Indigenous peoples’ rights, and the promotion of sustainable agriculture and food sovereignty. Chapter 7 will dissect these “alternatives” to intellectual property law for plants, while the present chapter explores the motivations that drove the reconfiguration of intellectual property in Ecuador. All of the initiatives to transform Ecuadorian legal regimes that have been undertaken during the past decade were grounded in the 2008 Constitution, which, as Chapter 1 described, recognised Pachamama as a subject of rights. This innovative change was intended to counter the historical objectification and appropriation of non-human life forms. Thus, the recognition of the rights of nature required Ecuadorian lawmakers to confront the underlying assumptions that diverse national laws implicitly or explicitly contained. Officials then had to make conscious decisions to reject certain principles and provisions that they deemed inconsistent with the rights of Pachamama and the concept of sumak kawsay/buen vivir, towards the end of adopting a new paradigm for the governance of encounters between different groups of people, and between human and non-human entities. Although at times other priorities and interests complicated this process, when engaging in law reform projects Ecuadorian legislators and bureaucrats regularly drew upon their interpretations of sumak kawsay/buen vivir and the new eco-centric vision that permeated national strategic planning.

100  Experimenting with an eco-centric approach

5.1 The Ingenios Act: intellectual property meets sumak kawsay Among the many important changes that the 2008 Constitution introduced, one of the most unusual was the departure from the templates provided by the 19 previous constitutions under which Ecuador had been governed since its establishment as an independent republic in 1830. Instead of reifying what some have termed “criollo” or non-democratic constitutionalism,1 the 2008 Constitution expressly incorporated and expanded principles derived from Indigenous Andean cosmologies and integrated these with new ideas about popular sovereignty. The Preamble unequivocally announced the aims of the new constitutional regime: “We choose to construct a new form of citizen coexistence, in diversity and in harmony with nature, to achieve good living [buen vivir], sumak kawsay.”2 Although the language of this declaration is clear, understanding how lawmakers interpreted these words when reforming sub-constitutional legal regimes following the enactment of the 2008 Constitution necessitates a review of sumak kawsay as a cosmological concept that has important implications for contemporary Ecuadorian society and economy. We can start with the former President of the Constituent Assembly, the economist Alberto Acosta, who has written that the recent incorporation of sumak kawsay into Ecuadorian political theory and practice provided a basis for the formation of a more democratic society.3 The idea was that the constitutional recognition of sumak kawsay would erect a foundation for the elevation of other Indigenous policy positions, including aspirations to reimagine the meaning of and relationships between nature, society, culture, and economy. Similarly, Uruguayan scholar Eduardo Gudynas has conceived of the constitutionalised sumak kawsay/buen vivir construct as a criticism of the reigning neoliberal capitalist economic model, and as a call to reconfigure development to focus on enhancing the well-being of people and nature alike.4 Another important perspective is that of René Ramírez, the Ecuadorian economist who held the positions of Secretary of the National Secretariat for Planning and Development and Minister of Higher Education, Science, Technology, and Innovation during the Correa administration, and with whom we will become familiar later in this chapter. During his time in public service, Ramírez viewed the constitutionalisation of sumak kawsay as a justification for the reorientation of the country towards “republican biosocialism,” a notion that fused concerns for social justice, respect for nature, and the desire for a new political paradigm.5 This concept was conceived to differentiate the contemporary moment from the socialist governmental experiments that several countries in Latin America and elsewhere had conducted throughout the twentieth century. During the early years of the Correa administration, Indigenous and nonIndigenous proponents of sumak kawsay criticised the “materialism” that was embodied in prior Latin American socialist experiments.6 In response, the version of republican biosocialism that Correa and other members of his Alianza PAIS (Proud and Sovereign Homeland) party – including Ramírez – ultimately

Reconfiguring intellectual property  101 adopted was alternately termed “buen vivir socialism”7 or “socialism of the twenty-first century.”8 This platform aimed to reappropriate the twentiethcentury socialist political and economic model in a way that would incorporate principles from the Indigenous and environmentalist movements. In the early 2000s, similar experiments unfolded concurrently in Argentina, Brazil, Bolivia, and Venezuela, situating Ecuador in a “pink tide” political revolution that aimed to challenge the “hegemony” of the United States and its neoliberal capitalist paradigm for economic policy in the inter-American region.9 As a theory of governance, socialism of the twenty-first century is grounded in a reinterpretation of socialist principles that the German sociologist Heinz Dieterich had advanced in the mid-1990s. Dieterich argued that in contrast to prior socialist models, socialism of the twenty-first century should be characterised by two distinct properties, namely participatory democracy and a “democratically planned equivalence economy.”10 The pink tide Latin American governments that institutionalised local versions of Dieterich’s proposal amalgamated these properties with an important third element, which was the “rediscovery” of communitarian Indigenous practices.11 Thus, socialism of the twenty-first century was understood to couple naturally with sumak kawsay/buen vivir. The new economic model would be based foremost on human development, respect for nature, and opposition to consumerism. In other words, “[o]ur goal should not be to live ‘better’ but to live ‘well.’”12 Notably, although socialism of the twenty-first century was predicated on participatory democracy, as with former iterations of socialist political projects, the State was conceived as the central axis for the planning and implementation of social and economic programmes. This “return of the State”13 characteristic of the pink tide governments was both idealistic and pragmatist. The idea was to maximise the rents that the State could capture from national economic activities to finance ambitious infrastructure construction and social welfare initiatives, a model that has also been described as “Andean capitalism.”14 Thus, in contrast to twentieth-century socialist models, proponents of Andean capitalism imagined that the private commercial sector would serve an important function, that is, to generate profits that the State could appropriate and redistribute to realise its reformist vision. Since the beginning of the twentieth century, several distinct models for the interaction between the State and markets were adopted and later discarded in Ecuador and other Andean countries. Prior to the return of the State movement in the early 2000s, there were at least three distinct eras in which Ecuadorian officials experimented with how the government should intervene in the national economy. These periods have been characterised as (1) “progress” or modernisation based on the extraction and exportation of raw materials; (2) industrialisation overseen and directed by the State; and (3) market reforms since the foreign debt crisis of the 1980s.15 The first two of these eras employed a “structuralist” model, which proposed an active role for the national government in regulating economic and social activities, including mining, agriculture, industrialisation, social security, and the labour market. In contrast, neoliberal economic

102  Experimenting with an eco-centric approach theories – united under the “Washington Consensus”16 – informed the third period, during which the Ecuadorian government adopted a laissez-faire approach to regulating the economy, promoting privatisation and market self-regulation. With the ascendency of the Alianza PAIS political party, the consolidation of Rafael Correa’s “Citizens’ Revolution,”17 and the election of Correa to the presidency, Ecuadorian officials rejected structuralism and neoliberalism alike, contending that both strategies led to the “dependent integration” of Ecuador into the global economy.18 The problem was that, notwithstanding the numerous attempts that previous administrations had undertaken to reform economic and fiscal policies, Ecuador still fundamentally relied on the extraction or harvest and exportation of raw commodities – especially crude oil, bananas, and shrimp – to sustain its economy. In an attempt to upend this dynamic, the Correa administration propounded a strategy of “sovereign and competitive integration into the world market.”19 This approach would involve the rejection of several bilateral and regional free trade agreements, a deliberate transition towards a service-based economy, and the generation of scientific and technological capacity, coupled with a scaling-down of the exportation of raw commodities. In other words, what the Citizens’ Revolution government aimed to achieve was nothing less than the wholesale transformation of Ecuadorian society and economy. The theory that undergirded this transition was an interpretation of buen vivir socialism/Andean capitalism that the Correa administration propounded, while the vehicle for change would be the 2008 Constitution. This new Ecuadorian order would involve radically reinventing the “productive matrix” of the country, winding down extractivism, discarding neoliberal capitalism, and striving to convert Ecuador, in the words of René Ramírez, into a “paradise of open and common (bio)knowledge for buen vivir.”20 As this quote suggests, Ramírez postulated that the key to a utopian future in Ecuador was bio-knowledge. This notion amalgamated the constitutional recognition of the rights of Pachamama with the rejection of neoliberal capitalism as anthropocentric and exploitative of non-human life forms and other elements of nature. In place of neoliberal capitalism, the Citizens’ Revolution government would establish an economy based on an “ecology of knowledges,” which would integrate Indigenous/ancestral/traditional ways of knowing the world with rationalist science, while mobilising the products of this engagement to produce innovative goods and services.21 Although the 2008 Constitution provided a foundation for this transformation, Ramírez and other officials believed that the goal of generating an ecology of knowledges could not be achieved without also overhauling other national legal frameworks. For this reason, in 2014, the Ecuadorian National Assembly declared that the “intellectual property law promulgated in 1998 is not in harmony with the rights and guarantees established in the Constitution of the Republic of Ecuador.”22 Thus, the National Assembly formally launched the Ingenios project, with the aim “to radically modify the existing paradigms in the generation, use, utilisation, and distribution of knowledge, a public interest good.”23 The regime would be designed to replace the Intellectual Property Law of 1998 because, according

Reconfiguring intellectual property  103 to the Preamble of the draft of the Ingenios Bill that was introduced in the National Assembly in June 2015, the former framework was “a hyper-privatist system of knowledge [management], in which solely the owners/merchants of the intellectual property corresponding to a few transnational monopolies have benefitted.”24 In contrast to this situation, the Ingenios project was designed around fundamentally democratic ideals, which were embedded in the language of the law as well as in the process through which it was made.

5.2 The making of the Ingenios Act Rather than promulgating a narrowly focussed reform, the Ingenios Act was designed with the express intention to reconfigure the meaning and purpose of intellectual property in the Ecuadorian context. This experiment in lawmaking proposed to substantially expand the normative context in which intellectual property is conventionally situated. Thus, the Ingenios Act encompassed a transformation of the entire national intellectual property legal framework, while at the same time being only partially concerned with intellectual property. The overarching purpose of the initiative was to reformulate the Ecuadorian economy, basing economic growth on the production, distribution, and transfer of knowledge, an exercise in which intellectual property would constitute one of various tools to be employed. As we have already seen, the conceptual foundation of the reconfiguration of intellectual property in Ecuador drew upon notions that were fused together under the economic theory of buen vivir socialism/Andean capitalism. The language that the Ingenios Act itself employed was that of the “social and solidary economy,” which can be understood as “a conception that endeavours to transcend the option between the capitalist market and the State as a central planner and regulator of the economy.”25 As with policymaking initiatives that other twenty-first-century socialist governments undertook during the pink tide era in Latin America, the hope was to establish an economic system that would disrupt the dichotomisation of neoliberal capitalism and State-centric socialism or communism that characterised conventional ways of thinking. In the context of these aspirations, the making of the Ingenios Act unfolded through activities that centred on redefining the terms of political engagement while also redrawing the boundaries of intellectual property. The idea was that in order to create a framework for a social and solidary economy based fundamentally on the open circulation of knowledge, democratic participation was required at all stages of legislative development. This was consistent with Dieterich’s two properties of socialism of the twenty-first century, namely participatory democracy and a democratically planned equivalence economy. As an incarnation of Dieterich’s theory, the Ingenios Bill was drafted through a process of public scrutiny and feedback, and different versions of the text were presented and debated in numerous community-level “socialisation” or “sensitisation” (awareness-raising) events, as well as online. The Ecuadorian officials responsible for the Ingenios project drew inspiration from other countries, analysing

104  Experimenting with an eco-centric approach prior international examples of the creation of “collaborative legislation” and “e-government,” based on which they designed their own strategy for citizen engagement.26 In an attempt to embody the “social innovation” that the project sought to foment, an initial version of the Ingenios Bill was published on a Wikimedia site in mid-2014 (called “WikiCOESC+I,” a name that combined the word “Wiki” with the abbreviation in Spanish for the official title of the law).27 Subsequent revised drafts were also uploaded to the website for public review and comment. The Wikimedia platform was selected as a tool for collaborative development of early versions of the Ingenios text based on its consistency with the “spirit” of the new law.28 Officials touted the project as the first example of the collective construction of legislation in Ecuador, and as a space for “citizen encounter” through which the various proposals could be discussed in a cooperative, transparent, and democratic manner. During the making of the law, the Ingenios Wikimedia page featured a video tutorial to raise awareness about the initiative, a list of aims, instructions for how to participate, and a link to create a user account. Once registered with the Wikimedia site, during the drafting period users could make comments, ask questions about the text, or submit suggested alternative language. Contributions were intentionally anonymised based on the idea that de-identification was “a fundamental part of the right to freedom of speech and expression,” which, in turn, was “inherent in the development of the democratic process.”29 However, one of the limitations of the Wikimedia platform was that users were only able to submit new comments to the draft Ingenios text, and therefore they were unable to respond to comments left by other users. This meant that dynamic debate was not possible between different users. Instead, a process of centralised curation was required, according to which comments were compiled and then considered by the officials responsible for generating the draft law.30 Notwithstanding this technical limitation, the Ingenios Wikimedia page garnered broad visibility. In October 2018, prior to the deactivation of the platform, the statistics on the site reported that it had received more than seven million views, with nearly 50,000 proposed edits submitted during the drafting of the Ingenios Bill.31 According to officials involved with the project, eight versions of the Bill were produced from the launch of the Wikimedia platform to the submission of the text to the National Assembly,32 although only two drafts were made directly available on the Wikimedia page. After the Ingenios Act was passed, a dedicated website was created for the law,33 on which several thematic videos were published to explain how officials believed that the new regime would address issues such as the protection of traditional knowledge, access to less expensive medications, and combating biopiracy.34 In addition to the formal online presence of the Ingenios Bill, social media was also leveraged as a means to complement the Wikimedia platform and to raise awareness about the undertaking. Beginning in early 2014, officials from the Ministry of Higher Education, Science, Technology and Innovation and the

Reconfiguring intellectual property  105 Ecuadorian Intellectual Property Institute began to utilise platforms, including Facebook and Twitter to “socialise” the Ingenios Bill. Manifestations of these initiatives included event announcements posted on the Facebook page of the Ecuadorian Intellectual Property Institute, and tweets published on the dedicated Ingenios project Twitter account.35 Likewise, numerous videos were uploaded to YouTube to explain the Ingenios initiative, including clips entitled “What is the Ingenios Act?”36 and “New Ingenios Act in Ecuador Seeks Productive Transformation.”37 Other videos featured delegates to the National Assembly, the Director of the Ecuadorian Intellectual Property Institute, and President Correa. Finally, as the draft law wended its way through rounds of debates and pre-legislative consultations38 in the National Assembly in late 2015 and early 2016, the Director of the Intellectual Property Institute and other governmental officials involved with the Ingenios project participated in frequent live television and radio interviews, most of which were subsequently made available for viewing or listening online. These virtual marketing and engagement campaigns were replicated in numerous real-world events. During the making of the Ingenios Act, officials from the Ministry of Higher Education, Science, Technology and Innovation and the Ecuadorian Intellectual Property Institute convened more than 500 socialisation talks in Ecuadorian universities, in addition to debates and round-table discussions with key stakeholders from the public, private, and academic sectors. Importantly, when the officials who managed the Wikimedia platform realised that some participants in the physical events were unlikely to submit comments online, they recorded these individuals’ observations during the proceedings and subsequently added them to the Ingenios Wikimedia page.39 Socialisation events related to the making of the Ingenios Act also transcended Ecuadorian borders. For instance, in 2015, the Director of the Intellectual Property Institute visited the Latin American Faculty of Social Sciences in Buenos Aires, Argentina to speak about the Ingenios Bill and to solicit feedback about the project.40 In 2016, the draft law was discussed during conferences focussed on innovation, the international patent system, and economic development at universities in Peru, Mexico, and Spain.41 The Ingenios Bill was also adopted as a case study in a graduate research programme focussed on investigating “cognitive capitalism” at the Sorbonne in France.42 Together, these occurrences amounted to significant popular influence of the Ingenios project, or at least the appearance thereof. Many Ecuadorian experts from the public and private sectors alike, whether in favour of or in opposition to the Ingenios Act, later described the awareness-raising efforts as impactful and generally positive. This is because the drafting and revision process mobilised the participation of sectors of the Ecuadorian population that were historically less familiar with intellectual property and its implications, including members of Indigenous communities, campesino farmers, tradespeople, and artists.43 The engagement of these groups was formalised through a process of pre-legislative consultations, in which members of Indigenous and minority ethnic communities were invited to the National Assembly to share their perspectives about

106  Experimenting with an eco-centric approach provisions of the Ingenios Bill that were relevant to them, such as how the law might affect customary agricultural practices and the protection of traditional knowledge. The National Assembly also convened general public debates, which were attended by artisans, farmers, entrepreneurs, academics, and civil society representatives. From the time when the Ingenios project was launched in early 2014 to when the National Assembly enacted the final version of the law in late 2016, the drafting and revision process involved significant popular participation. However, conversations with the officials and consultants who contributed to the making of the Ingenios Act suggested that the extent to which Ecuadorian citizens’ comments directly influenced the final version of the text was probably limited. While these sources reported that officials considered all of the opinions and suggestions that were submitted through the Wikimedia platform, and although some of these motivated changes to early drafts of the Bill,44 other factors predominantly shaped the form that the final version of the law assumed. Relevant influences included the international obligations described in Chapter 3 of this book, in addition to the sometimes-divergent priorities that different factions of the national government advanced. The result was a legal document that remained radically reformist in rhetoric but largely conformist in substance, as we soon will see. Thus, the making of the Ingenios Act began with ambitious goals, which manifested the aspirational vision of a small group of Ecuadorian officials who believed that they could profoundly reconfigure intellectual property in the national context. Their objectives were embedded in early drafts of the text, including the version of the Ingenios Bill that was submitted to the National Assembly in June 2015. In its final form, the Ingenios Act retained certain innovative aims, such as to “generate a pluralist and inclusive vision in the utilisation of knowledge, granting supremacy to use value over exchange value” and to “develop forms of property for knowledge compatible with buen vivir, [including] public, private, communitarian, State, associative, and mixed.”45 However, the way that intellectual property was imagined in the final version of the Ingenios Act generally conformed to conventional logics of individual ownership, free-market economic exploitation, and linear developmentalism. The following two sections will examine the aspirations and substance, respectively, of the new Ecuadorian system of intellectual property that the Ingenios Act created.

5.3 The aspirations of the Ingenios Act As we have already seen, the Ingenios Act was conceptually grounded in the 2008 Constitution. The intrinsic connection of the Ingenios regime to the constitutional framework is exemplified in the Preamble of the law, which justified the reconfiguration of intellectual property based in part on the constitutional right of persons “to enjoy the benefits of scientific progress and traditional knowledge.”46 The Preamble also foregrounded the responsibility of the State, pursuant to the 2008 Constitution, which had announced the goal “to facilitate

Reconfiguring intellectual property  107 and promote the incorporation of knowledge into society to achieve the objectives of the development regime.”47 To realise the development goals of the Citizens’ Revolution government, the Ingenios Act would aspire to attain several ends, including the generation and production of knowledge, the expansion of scientific and technological research, the recovery and empowerment of traditional knowledge, and the broad diffusion of and access to all forms of knowledge. While the Ingenios Act was imbued with diverse aspirations, its goals may be categorised according to three general themes. These are (1) redefining knowledge; (2) transforming the economy; and (3) balancing the interests of different human and non-human actors who engage with the intellectual property system. Although these three themes infused the language with which the Ingenios project was framed – witnessed in both the text of the Act itself and the narratives woven by promoters of the law – they could not always be translated into concrete legal provisions, for reasons described later in this chapter. The first theme, redefining knowledge, is evidenced foremost in the conception of the “dialogue of knowledges” (diálogo de saberes). The Ingenios Act defined this notion as “the process of generation, transmission, and exchange of scientific knowledge and traditional knowledge,”48 which was intended to reinforce the constitutional proclamation that the Ecuadorian polity is fundamentally plurinational and intercultural. In other words, the idea was that the new intellectual property law would set the terms for the generation and circulation – and, in the case of ancestral knowledge that has been lost or marginalised, the recovery – of different kinds of knowledge, themselves ostensibly representative of different cosmologies. Doing so would depart from legal conventions, which the drafters of the Ingenios Act understood as biased in favour of rationalist science and against Indigenous peoples’ ways of knowing the world. By fostering a dialogue of knowledges, the Ingenios Act sought to actualise the vision of the 2008 Constitution, inaugurating a new society and economy founded on sumak kawsay/buen vivir. Thus, the Ingenios Act declared, “the generation, transmission, management, use and utilisation of knowledge, creativity, technology, innovation, and traditional knowledge shall be oriented towards the realisation of buen vivir.”49 For this to occur, sovereignty over knowledge was viewed as a critical principle. The Ingenios system characterised this kind of sovereignty as a strategic objective of the State,50 driven by the desire to break the cycle of “cognitive dependency,” which Ecuadorian officials believed that their country in particular and the Andean region in general has historically experienced in relation to relatively wealthier States. As the Exposition of Motives of the Ingenios Act explained, “our cognitive and technological matrix has been primarily dependent on the activities and goods produced in and by ‘developed’ countries.”51 In contrast, the new regime would be grounded in endogenous knowledge production and development, which was understood as a means to foment both local (by reinforcing plurinationality) and national (by strengthening the State) forms of sovereignty.

108  Experimenting with an eco-centric approach In the Spanish language, unlike in English, the pluralisation of knowledge as conocimientos or saberes is grammatically correct when referring to groupings of information. Thus, English phrases like “technical knowledge” and “ancestral knowledge” become “conocimientos técnicos” and “saberes ancestrales,” respectively, in Spanish. Nevertheless, the addition of the “s” and “es” at the end of the words conocimiento and saber in the text of the Ingenios Act was intended to pluralise both the words themselves, and the concept that they represented. This linguistic detail was envisaged as expanding the scope of intellectual property, equally promoting knowledge generated through rationalist science and ways of knowing rooted in Indigenous cosmologies. The Preamble of the draft of the Ingenios Bill that was submitted to the National Assembly in June 2015 explained the decision as such: [W]e must stress that the noun knowledges – in plural – in the name of the Act is not a mere coincidence. In effect, the Ecuadorian State has maintained a historical debt throughout its republican life: its institutions have stubbornly employed a European worldview, [and] in this manner, have made invisible any manifestation of knowledge or culture that does not enter into the positivist and Western canons.52 The pluralisation of the concept of knowledge in the Ingenios Act was regarded as a means to give effect to the constitutional promise of plurinationality and the promotion of sumak kawsay/buen vivir. Similar ambitions underpinned the second theme that the framing language of the Ingenios Act embodied, namely transforming the Ecuadorian economy. This aspiration is evidenced in one of the primary motivations that drove the law reform effort, which was to establish a “social economy of knowledge, creativity, and innovation.” The focus of the new economy would be the creation of value by “promot[ing] an economic model that will democratise the production, transmission and appropriation of knowledge as a public interest good, thus guaranteeing the accumulation and redistribution of wealth in a manner that is just, sustainable and in harmony with nature.”53 The economic model referenced in this passage represents a codification of sumak kawsay/buen vivir as an alternative to what the architects of the Ingenios Act variously described as neoliberal, Western, or Northern models of development. The economic rationale for reforming the Ecuadorian intellectual property system was announced in the Preamble of the 2015 Ingenios Bill by referencing the Intellectual Property Law of 1998 that the Act would replace. The Ingenios Bill characterised the older law as promoting a “hyper-privatising system of knowledge,” which “for nearly 20 years…has solely benefitted the owners/ merchants of intellectual property corresponding to a few transnational monopolies, has limited the possibility to innovate, and has been unable to attract foreign investment.”54 This language further evidenced the belief of the creators of the Ingenios regime that the neoliberal capitalist approach to economic development was inappropriate for Ecuador, and that linear developmentalism should be rejected in favour of a buen vivir socialist strategy.

Reconfiguring intellectual property  109 Nevertheless, the aspirations of the Ingenios project at times appear contradictory when read across the various texts that produced the version of the law that was ultimately enacted. For instance, the final version of the Ingenios Act explained that as a general principle, the regulation of intellectual property and traditional knowledge “constitutes a tool for the appropriate management of knowledge, with the objective of promoting scientific, technological, artistic, and cultural development, as well as incentivising innovation.”55 This language reinscribed one of the standard rationales that is regularly invoked to defend the establishment and expansion of intellectual property norms, specifically that exclusive private ownership rights reward creative activity and incentivise innovation. Understood superficially, this principle would appear to contradict one aim of the Ingenios Bill, which proposed “an alternative to the hyper-privitisation of knowledge” that would allow the State “to intervene in unjust situations, in which the distribution of [protected] knowledge is not only necessary but essential to achieve common well-being.”56 However, understood in the context of the 2008 Constitution and governmental strategic planning – as embodied in documents such as the 2013–2017 National Plan for Buen Vivir 57 – all of the Ingenios texts contain a certain logical consistency, aspiring simultaneously to reject developmentalism and to strive for economic growth. According to this approach, financial capital generated with the support of the new intellectual property regime was imagined as fuelling an Andean – instead of a neoliberal – capitalist system, with the State positioned as the central arbiter of resource flows. Furthermore, the Ingenios Act was envisaged as supporting an economic model based on an interpretation of buen vivir that René Ramírez characterised as a “new pact of coexistence [that is formed] not only between members of the community, but between these persons and the environment.”58 This “pact” between human beings and nature would necessarily depend on reducing the historical reliance on the extraction or harvest and exportation of raw commodities, activities that were understood as damaging to the Ecuadorian ecosystems. The continued reliance on raw commodity exports would recapitulate social dynamics in which Indigenous and minority ethnic peoples would remain marginalised, and in which the rights of nature would continue to be violated. Therefore, officials believed that a different economic model was needed, in which intellectual resources would replace natural resources as the primary means of wealth generation. The Ingenios Act and its system of intellectual property were supposed to function as an instrument for the creation of this new economic model. In addition to actualising the new pact of coexistence required by a buen vivir society, the Ingenios system would strengthen national sovereignty by making Ecuador less “cognitively dependent” on other countries. The role of the Ingenios Act in this new paradigm would be to foment a pattern of economic specialisation grounded in knowledge, science, technology, and “social innovation,” in conjunction with a strong policy of wealth redistribution.59 In doing so, the hope was to reduce poverty, inequality, and the social

110  Experimenting with an eco-centric approach and political marginalisation of Indigenous and minority ethnic communities, while simultaneously improving the quality of life for the Ecuadorian population as a whole and promoting the rights of nature. These aims would be achieved by democratising the use and enjoyment of the benefits produced through the application of knowledge and by achieving the greatest efficiency possible in the coordination of activities to avoid the duplication of efforts. Thus, the Ingenios Act aspired to promote the generation of knowledge under an open, social, democratic and inclusive system, focused on human beings, in the development of their potential and the exercise of their rights, within the framework of respect for the rights of their peers and of nature.60 The focus on the democratisation of knowledge in the Ingenios Act is consistent with the principles of buen vivir socialism described earlier in this chapter, which envisage an “equivalence economy” founded on participatory democracy and the rediscovery of Indigenous communitarianism. In the context of intellectual property law, these principles were interpreted as requiring a balancing of interests, which is the third general theme that characterises the Ingenios Act. Specifically, the Common Dispositions of the Ingenios Act explained, “the acquisition and exercise of intellectual property rights shall ensure a balance between owners and users.”61 Furthermore, “knowledge constitutes a public interest good, [and] its access shall be free.”62 However, this free access can be restricted based on the provisions of the 2008 Constitution, other national laws, international treaties, and the intellectual property system that the Ingenios Act established. Although the formulation of knowledge as a public interest good and the promotion of private intellectual property may appear to be contradictory – as Ecuadorian critics of the Ingenios Act argued during the making of the law63 – the consolidation of these ideas merely reiterated the global status quo in more explicit language. This is because intellectual property operates to make certain uses of knowledge exclusive, but it does not limit the circulation of knowledge itself. Nevertheless, during the Ingenios Act socialisation period, opponents of the reform believed that the law would effectively make intellectual property impossible to obtain in Ecuador. This likely resulted from the conflation of two distinct notions: first, that knowledge is a public interest good, and second, that the products of the application of knowledge should be available to all, without restrictions, in the public domain. These assertions do not necessarily overlap. Proclaiming that knowledge is a public interest good does not automatically situate protected intellectual properties – whether these are creative works, patented products or processes, or new varieties of plants – in the public domain. Furthermore, this definition does not exclude the possibility of granting private proprietary rights to the creators of productions that meet the requirements for protection that the law defines. There are many products circulating in the economies of Ecuador and other countries that have been classified as being in the public interest – for

Reconfiguring intellectual property  111 instance, medications or educational texts – which may still be protected under intellectual property laws. Therefore, while the Ingenios Act created or expanded certain mechanisms through which the government could rethink the imagined dichotomies of public/private, access/exclusion, and owners/users – for instance, through its systems of compulsory licences – the law did not change the fundamental nature of intellectual property. Evidence that the rebalancing of interests that the Ingenios Act performed is less drastic than may initially appear is found in the intentions of the drafters of the law, who were careful to ensure that the new regime would not undermine the various international commitments that Ecuador had already undertaken or was on the verge of assuming. When critics of the Ingenios Bill alleged during sensitisation events that the proposal could violate the country’s treaty obligations, especially those imposed by the TRIPS Agreement,64 the governmental officials responsible for the project responded by rendering the law less radical, and by clarifying their position in the text itself. Thus, the introduction of the enacted version of the Ingenios Act stated explicitly, “Nothing foreseen in this Code shall be able to be interpreted as contrary to the principles, rights and obligations established in the International Treaties of which Ecuador is party….”65 Ultimately, although the rhetoric of the Ingenios Act at times assumed a dramatic tone, in some ways, the actual provisions of the law belied its rousing language. As mentioned earlier, many of the more radical provisions of the draft Ingenios Bill were diluted or eliminated altogether based on feedback received during the period of public comment on the Wikimedia page and the public socialisation events, and after the Ecuadorian National Assembly reviewed the project. Many of the substantive changes that tempered the law can likely be attributed to political compromises that different factions of the government reached prior to the adoption of the law. Another explanation is found in the reluctance of the Correa administration to jeopardise international commerce, notwithstanding the vehement opposition to free trade agreements that the President expressed during his first term in office. These dynamics converged to moderate the imaginaries that the Ingenios Act ultimately realised, such that they tended generally to conform to conventional international intellectual property standards.

5.4 The new institutionalism of the Ingenios Act If understood as an intellectual property law, one of the more surprising aspects of the Ingenios Act is that the majority of its provisions are devoted to subject matter outside of the traditional ambit of intellectual property. The official title of the law – The Organic Code for the Social Economy of Knowledge, Creativity, and Innovation – itself suggests that the regime aimed to erect a system that would do much more than delimit guidelines for how intellectual property may be protected or enforced. Structurally, the law is divided into four “Books” covering an array of topics, including the establishment of a national system for science, technology, innovation, and ancestral knowledge; and the

112  Experimenting with an eco-centric approach regulation of responsible research and social innovation. It is not until Book III that both conventional – for instance, patents, copyrights, and trademarks – and experimental – taking the form of protections for traditional knowledge – intellectual property provisions are presented. Thus, the organisation of the Ingenios Act is an expression of officials’ aspirations to transcend narrow, technolegal formulations of intellectual property, instead embracing a holistic approach that would contribute to the reconfiguration of the national economy. As described in earlier sections of this chapter, the framing language of the Ingenios Act imagined a system that would liberate Ecuador from its situation of cognitive dependency, installing a pluralist system of governance and economic exchange that would empower diverse groups of people, in harmony with nature, within an episteme of buen vivir. However, the design of the Ingenios Act also promoted governmental re-centralisation by situating the Ecuadorian State as the axis through which all transactions concerning the “public good” of knowledge must flow. This can likely be interpreted as a manifestation of the return of the State governance philosophy that dominated lawmaking in pink tide Latin American countries during the early 2000s. René Ramírez described the strategy as one of “neosovereignty,” involving the “reconstruction of the nation-state dimension of public action and delineation of a regional political space.”66 Such an approach is epitomised in the Preamble of the Ingenios Act, which, citing the 2008 Constitution, included the ambition to “guarantee national sovereignty, promote Latin American integration, and propel a strategic insertion into the international context.”67 To actualise this aspiration, the Ingenios Act erected new State-based systems for the management of knowledge. The focus on “institutionalism” was manifested in the positioning of the Ministry of Higher Education, Science, Technology and Innovation as the entity responsible for the oversight of the new intellectual property framework, in addition to the implementation of a newly created National System for Science, Technology, Innovation and Ancestral Knowledge. Other structural changes that the Ingenios Act mandated included the replacement of the independent Ecuadorian Intellectual Property Institute with a new National Service for Intellectual Rights,68 an institution that the Ministry of Higher Education, Science, Technology and Innovation now controls.69 The Ingenios Act also authorised the Ministry to manage new physical spaces designed to foment the generation of knowledge and innovation, including special technological “zones” for economic development; planned cities oriented towards scientific research and entrepreneurship, with Yachay as the flagship site; scientific-technological parks; techno-industrial parks; and technology transfer centres. The idea was that in such places, “the collaborative flows of knowledge and technology will be stimulated and managed, among all of the actors of the social economy of knowledge, creativity and innovation.”70 The Ingenios Act did not envisage the sort of public sector exclusivity that was characteristic of twentieth-century socialist or communist economic models. Nevertheless, its provisions reset relationships between public and private actors, such that these

Reconfiguring intellectual property  113 interactions would be subject to continual scrutiny by the State, through the broad discretionary powers that the law granted to the Ministry of Higher Education, Science, Technology and Innovation. As the Minister of Higher Education, Science, Technology and Innovation, René Ramírez was the governmental official whose ideas most substantively informed the Ingenios project, at least in its early stages. His vision for the law was “to distribute producing and produce redistributing sustainably, putting life first and not the accumulation of capital.”71 Therefore, the Ingenios Act model was designed to blend elements of twenty-first-century socialism with buen vivir, and in so doing, to expand upon the traditional forms of intellectual property ownership. To disrupt the standard, imagined dichotomy between public and private spheres of proprietary rights, the Ingenios Act expressly created opportunities for multiple forms of ownership, including public, private, communitarian, State, associative, cooperative, and mixed properties.72 While this enlargement of the ambit of intellectual property is noteworthy, neither the Ingenios Act nor the 2008 Constitution – which recognised the same taxonomy of intellectual property ownership – delimited the seven categories. The failure to define the scope of the various types of rights suggests that the makers of the Ingenios Act may have been more concerned with elaborating the role of the State in intellectual property governance than with encouraging potentially competing forms of cooperative organisation. Nevertheless, definitions of the seven forms of intellectual property ownership could still be fixed in the Ingenios technical regulations, which as of late 2019 were being finalised by the National Service for Intellectual Rights. Alternatively, the meaning of each of the categories could be elaborated through future judicial decisions. Another area in which the Ingenios Act aspired to transcend conventional doctrine is found in the conceptual association between intellectual property and human rights. The General Principles of the section of the law that is concerned with intellectual property declared, the acquisition and exercise [of intellectual property rights], as well as their weighing with other rights, shall assure the effective enjoyment of fundamental rights and shall contribute to an adequate diffusion of knowledge in benefit of the owners and society.73 Here again, intellectual property was conceived as a tool to accomplish certain national goals, primary among which was the broad dissemination of knowledge. Meanwhile, intellectual property was subordinated to other rights regimes, including those of “health and nutrition, education, information, access to culture and to participate in scientific progress, as well as the right to develop economic activities, freedom of work, to access quality goods and services, and the rights to other forms of property.”74 These provisions suggest that eventually, intellectual property enforcement under the new regime could regularly involve the invocation of other legal frameworks, in effect transcending the actual provisions of the Ingenios Act.

114  Experimenting with an eco-centric approach Judges  could resolve disputes over infringement by relying on constitutional considerations related to diverse categories of human rights rather than on intellectual property norms. It is also notable that under the Ingenios Act, the acquisition and exercise of intellectual property was made contingent on the extent to which privatisation would promote social innovation and the transfer and diffusion of knowledge. The objective was to generate reciprocal benefits for producers and users of intellectual property alike, “in a way that favours social and economic well-being and the balance between rights and obligations.”75 A primary effect of this mandated balancing of interests was the initiation of a transversal, interventionist role of the State in general, and of the Ministry of Higher Education, Science, Technology and Innovation in particular, in matters of intellectual property governance. The Ingenios Act declared intellectual property to be “of public interest and [thus it] shall enjoy a form of protection that allows for the satisfaction of the basic needs of society.”76 Essentially, the regime epitomised an attempt to deviate from the idea that intellectual property protection should be granted simply “as an end in itself,”77 instead favouring the strategic use of intellectual property as a means to accomplish specific, centrally defined goals, which would manifest the Ecuadorian State’s conception of public interest. Overall, the aspirations of the Ingenios Act consistently expressed a desire to customise intellectual property law to meet national goals, in a way that would be consonant with the general governance philosophy that the 2008 Constitution instated. The overarching goals of the Ingenios system included fostering broad access to knowledge, pluralising ontologies for knowledge production, contributing to the reconfiguration of the Ecuadorian economy, and creating a buen vivir society. However, as the next section will show, the intentions of the framers of the Ingenios Act were less radical than critics of the law have alleged.

5.5 The Ingenios Act: reimagination or recapitulation? The Ingenios Act attracted attention from scholars and practitioners who were versed in conventional intellectual property law because the regime attempted to consolidate disparate conceptual orientations and pragmatic institutional operations. However, the legal imaginaries that the Ingenios project sought to realise were not necessarily novel. For instance, compulsory licences as a State-mediated mechanism to balance the interests of intellectual property owners and users are firmly established in international jurisprudence. Exclusions to certain categories of productions that may be protected as intellectual property are also common. What is unusual are the incongruities that were embedded in the Ingenios Act and how lawmakers attempted to reconcile the many competing agendas and pressures to which they were subject. Tensions are manifest in the text of the Ingenios Act, which aspired to abandon the “positivist and Western canons” of a “Eurocentric cosmology.”78 Despite this, the law enabled the consolidation of State control over knowledge flows through processes of re-centralisation, contrasting with the decentralisation of

Reconfiguring intellectual property  115 sovereignty ostensibly imagined in the 2008 Constitution’s conception of plurinationality. Another inconsistency is found in the heavy reliance in the Ingenios Act on rights-based notions of liberal democratic citizenship, even while the text discusses “interculturality” and “knowledges” in the plural form. Thus, it is important to ask, how radical is the Ingenios Act? Which aspects of the law constitute innovations and which parts simply repackage conventional narratives about intellectual property in reformist language? These queries can be addressed by contrasting the self-referential discourse of the Ingenios Act with the words of the actors involved in its creation. While the various texts produced by the Ingenios project may attempt to speak for themselves, it would be insufficient to read these documents in isolation from their embedded and strategic position within the Citizens’ Revolution government. René Ramírez, whom we already know as the Minister of Higher Education, Science, Technology and Innovation during the Correa administration, was the principal architect driving the conception of the Ingenios project. Ramírez has explained that his ideas surrounding the reconfiguration of the access, generation, and circulation of knowledge began to gestate when he served as the head of the National Secretariat for Planning and Development. In this role, Ramírez was involved in the making of the new Organic Law for Higher Education, which, among other reforms, created a system of free, universal tertiary education in Ecuador. During this process, Ramírez says he came to believe that education could not truly be free and accessible to all Ecuadorians if the products of knowledge continued to be privatised or, in other words, protected as intellectual property. Therefore, it was there where I said, we need [the Ingenios Act]. And in this framework, knowing that we cannot withdraw from international norms, it is necessary to have…I would have liked for it to be much more radical in the sense of the recuperation of public and common knowledge and culture. But you can’t because of the issue of international treaties. So, [we formulated] all intellectual property as an exception to the public domain, trying to recover as much as we can in the entire corpus of the law, this spirit.79 Other officials similarly suggested that the purpose of the Ingenios experiment was to reclaim the role of the public sector without forsaking international intellectual property standards. Thus, the lawmaking process involved interpretative playfulness, including with the lacunae that may be located in international norms, while remaining compliant with the terms of the various treaties that Chapters 3 and 4 of this book discussed. For instance, an official at the Yachay Public Enterprise told me that the Ingenios Act …doesn’t claim to abandon [the] TRIPS [Agreement]. Rather, within the reigning international structure, it tries to find cracks and vacuums in the international legislation – which our own government has signed onto – in

116  Experimenting with an eco-centric approach which principles could be inserted that are more progressive and more – why not say it – opportunistic in our stage of development.80 The same official also noted that: I think that we reconceptualise our role within the system, but the schema of intellectual property is not reconceptualised. (…) It is coherent with the reformist vision of the government. It isn’t a socialist revolution. It isn’t the Paris Commune. But it is a space where…you can enjoy certain tunnels through which to pass, to be able to emerge in a new place, without needing to collide with other actors in the international system.81 This explanation of the purpose of the Ingenios project operates to temper the relatively more drastic language that typified especially the introductory sections of early drafts of the law. Other officials from the Citizens’ Revolution government similarly described the fundamental purpose of the Ingenios Act as transforming the national economic model. One official went so far as to declare that intellectual property should be deployed as “a weapon for development” under the Ingenios Act.82 This characterisation is consistent with the interpretation of Ecuadorian academics familiar with the Ingenios project, who have described it as a “policy of resistance” based on the development paradigm that the Citizens’ Revolution promoted.83 Therefore, the making of the Ingenios Act involved the defiance of certain global dynamics that the framers of the law had identified as problematic. However, the process was not one of radical reinvention or outright rejection of conventional intellectual property norms. In order to identify gaps in the treaties that Ecuador has joined, the lawmakers responsible for drafting the Ingenios Bill enlisted the help of external consultants. These actors included the South Centre,84 the Chilean non-governmental organisation Corporación Innovarte 85 and academics from the Sorbonne86 and the Latin American Faculty for Social Sciences.87 One of the experts consulted was Professor Carlos Correa,88 who described the process of drafting the Ingenios text as being characterised by taking calculated risks with legislation. In the consultancy that I and others did in Ecuador, [we] tried to find solutions that are compatible. If they aren’t, well, some other World Trade Organization member country would have to lodge a complaint, would need to put together a panel, and if Ecuador has made a mistake, it would have the opportunity to correct it. But in any case, what [the Ingenios Act] tries to do is to operate within the limit of the legitimate, in ways that are of interest for the country. It can be seen that other countries are following similar paths. None of them have been challenged in the World Trade Organization for reasons of TRIPS compliance.89 In other words, at least in the sections of the law that are concerned with standard forms of intellectual property – for instance, those related to patents, copyrights,

Reconfiguring intellectual property  117 trademarks, and plant breeders’ rights – the exercise was one of finding space to experiment within existing international legal frameworks rather than wholly rejecting and re-creating these regimes. Furthermore, while the making of the Ingenios Act was driven in part by a desire to take advantage of the available policy space, the strategy was also motivated by the internal philosophy and goals of the Citizens’ Revolution government. Notwithstanding its stated orientation towards “post-developmentalism,” the Correa administration regularly operated in a way that was consistent with a neoliberal capitalist model of linear economic development.90 It is also important to highlight that the drafting of the Ingenios text was an evolutionary process that eventually involved the participation of numerous overt and clandestine influences, rather than a discrete exercise that occurred in isolation. When compiling preliminary versions of the Bill, lawmakers engaged in experimentation, in some instances deviating substantially from global intellectual property norms.91 However, as the Ingenios Bill matured and a greater number of actors representing a wider variety of interests became involved, the provisions of the draft law increasingly began to conform more than reform. There are at least two reasons for this de-radicalisation. The first relates to internal tensions that operated behind the scenes during the making of the Ingenios Act. As the project evolved – especially between the release of the first public version of the Bill online via the Wikimedia page in October 2014, and the submission of a full version of the text to the National Assembly in June 2015 – progressive and conservative actors from different branches of the government clashed with one another.92 These conflicts coincided with and were exacerbated by the fact that as the Ingenios project progressed through stages of internal drafts by a small number of officials in the Ecuadorian Intellectual Property Institute, to a period of public comment, to submission to and debate within the National Assembly, national presidential elections loomed ever nearer. When the Ingenios Act was finally passed and published in the Official Register in December 2016, the polemical election that could have ended the Citizens’ Revolution era was mere weeks away.93 In May 2016, one senior official at the Ecuadorian Intellectual Property Institute noted: We are living in a sui generis political moment. [We have] a government that has had nine years in power and is in a normal process of winding down. We have elections next year. Therefore, almost everything that is being discussed at this time [in relation to the Ingenios project] is politicised. Is extremely politicised.94 This politicisation manifested itself textually in the Ingenios Act, as different factions struggled over the question of how radical to render the law. Initially, the Ministry of Higher Education, Science, Technology and Innovation was the principal institutional actor involved in the making of the Ingenios Act. Under the vision of Minister Ramírez, as we have already seen, one of the primary

118  Experimenting with an eco-centric approach motivations of the law was to reconfigure the national system of science, technology, and innovation. At the outset, the question was, according to another senior official at the Ecuadorian Intellectual Property Institute, How do we change the system of science, technology, and innovation? An analysis was done of how it could be changed. And a fundamental part was intellectual property rights.95 At this point, the second reason for why the Ingenios project was de-radicalised emerged. Beginning in 2013, the idea to reform the intellectual property law was taken up as …an issue at the ministerial level. But they didn’t have much of an idea of what international treaties are. They thought that it was as easy as making our own law, with whatever standards you want, but it was not like that.96 Thus, officials at the Ministry of Higher Education, Science, Technology and Innovation contracted a private law firm to conduct an analysis that would identify parts of the 1998 Intellectual Property Law that could be modified while remaining compliant with the international obligations to which Ecuador was committed. After reviewing this external analysis, the Ministry ultimately rejected the changes it proposed as overly “tied to private interests.” 97 At that point, the Ministry decided to assemble its own small team under the leadership of the Director of the Ecuadorian Intellectual Property Institute to construct an entirely sui generis regime, although as discussed throughout this chapter, the extent to which the new law could be truly novel was shaped by a variety of forces, both external and internal. One of the legal experts who was involved in the drafting of the Ingenios Bill described the process as follows: The work was developed in matrices. So, you have the text of the current intellectual property law. You have the text of the Andean Community decisions, and you have here the proposed text. And in each one of these, you have observations. So, it occurs to me that the law should say this in that article. But TRIPS, what does it tell you? You see that TRIPS doesn’t say anything, so why don’t we take it up? Or no, let’s change this. This was the style. The analysis is not only of TRIPS but also for example, [the] Berne [Convention] speaks about this. [The] Paris [Convention] tells you that. Afterwards, we went area by area, reviewing. Copyright, industrial property, plant varieties. This is how we went, building. I can’t tell you how much time it took exactly, but I know that we worked Saturday and Sunday. A moment arrived when I didn’t know what day it was. It reached that level. What day is today? There was political pressure because this had to happen fast. Because obviously they wanted [the law] to be passed before the next election period.98

Reconfiguring intellectual property  119 In this way, the final version of the Ingenios text did not simply result from an isolated experiment in lawmaking conducted in the meeting rooms and cubicles of administrative buildings in Quito. Nor was the new law primarily shaped by the transversal democratic participation of ordinary Ecuadorian citizens, whether through online engagement with the Wikimedia site or physical presence at Ingenios socialisation events. Instead, the Act was crafted through a technical, iterative, and highly referential practice of assemblage, in which policy structures originally devised in nineteenth-century Paris were amalgamated with objectives associated with twenty-first-century socialism ideals and with statist institutional translations of Andean cosmology. Throughout this process, internal political pressures constantly interrupted and refashioned the development of this intellectual property patchwork. An official at the Ecuadorian Intellectual Property Institute confided that: I think that the pressure was from the Minister himself [Ramírez], and what we’ll call the left wing of the government. Because there were interests on the right that said, ‘we don’t want this.’ And above all, the pressure was because a [free trade] agreement was going to be negotiated with the European Union. And the left wing was against the agreement with the European Union, above all because of intellectual property issues.99 The pressures from outside and from within the Ecuadorian government did not operate in isolation from one another. Instead, these influences regularly intertwined. As another person who was involved in the early stages of the drafting process explained, The Ecuadorian system has international agreements and the Constitution. And current laws cannot be contradicted in a new framework. And within this new framework there also exists a political vision of the current government, and there are limits within which you have to play.100 A further twist was that at times, rather than solely being subjected to forces external to the lawmaking process, the Ingenios Act itself became an instrument through which pressure could be applied to achieve certain political ends. For instance, during negotiations towards the free trade agreement with the European Union, one official revealed that they began to put in many more compulsory licenses. It was to pressure, to get rid of the matter of the negotiations with the European Union. Let’s grant compulsory licenses. Because this is going to bother them, and it is going to make the agreement fall through.101 Thus, notwithstanding the aspirational framing language of the Ingenios Act, which spoke of radically transforming intellectual property, in practice the project embodied a variety of purposes since its inception. The substance of the

120  Experimenting with an eco-centric approach enacted version of the Ingenios Act was influenced by numerous actors and contextual factors, which gradually rendered the text less radical over time and as the law was drafted and revised. Furthermore, the Ingenios paradigm was destined from the outset to be bounded in certain respects. As lawmakers have consistently acknowledged, the Citizens’ Revolution government never intended to withdraw from the World Trade Organization or from other treaties to which Ecuador is party. [The creation of] the Constituent Assembly was approved by 82% of the population in a referendum. Therefore, the fact of having such a strong capacity to mobilise volunteers – and with a political project that calmly could have said ‘I’m leaving the World Trade Organization. Because it’s the way’ – with the political legitimacy that the project had, we could have easily done it. But I don’t think it was ever an objective.102 Even in the excitement that the small team of drafters experienced over the perception that they were reconfiguring intellectual property and that they were creating something that had never been tested in other countries, the notion of withdrawing from the World Trade Organization or from other international commitments was never seriously considered. One of the officials responsible for generating early versions of the Ingenios Bill explained the deliberations as follows: In one moment, the idea came out: what happens if we leave the World Trade Organization? But later, of course, we analysed it more clearly and realised it wasn’t possible. Aside from the fact that it was our idea, not the government’s.103 This statement reveals one of the fundamental thematic undercurrents that characterised the Citizens’ Revolution era in Ecuador. Consistent with the principles of buen vivir socialism, Ecuadorian lawmakers plainly stated that their intention was to chart a course between classical socialism and neoliberal capitalism to “bring back the State” but not to abandon free-market economics entirely. This strategy was manifested concretely in the Ingenios Act through a series of compromises. Thus, reformist aspirations were married to provisions that attempted to take advantage of the policy space that remained available in international agreements, without substantively forsaking the dominant paradigm. As one Citizens’ Revolution official characterised it, the strategy was “disruptive, but not rupturist.”104

Notes 1 Martinez, D. R. (2016). Democratic Constitutionalism and Constitutional Innovation in Ecuador: The 2008 Constitution. (V.J. Furio, tr.) Latin American Perspectives, 206, 158–174: 160.

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Conference on eDemocracy & eGovernment (Sangolquí, Ecuador, March 30, 2016– April 1, 2016), pp. 87–92. See http://coesc.educacionsuperior.gob.ec/. Subsequent to the deactivation of the Wikimedia platform, a dedicated website was created to disseminate information about the Código Ingenios: http://www.ingenios.info.ec/. Note that as of 2019, this website has been deactivated. Terán, et al., supra note 26. The aspects of the Wikimedia platform cited as especially consistent with the spirit of the Ingenios Act are “licensing, development of free software and use of open access tools, familiarity of citizens with its use, and the thematic user interface (UI), specific interaction processes, among others.” p. 88. Id. at 89. Consultant from the FLOK Society involved with the making of the Ingenios Bill. (17 May 2016). Personal interview. Ingenios Wikimedia homepage. Retrieved from http://coesc.educacionsuperior.gob. ec/index.php/C%C3%B3digo_Org%C3%A1nico_de_Econom%C3%ADa_Social_ del_Conocimiento_e_Innovaci%C3%B3n. (accessed 31 October 2018; note that the site had been deactivated as of 2019). Terán, et al. supra note 26. Ingenios Act homepage. Retrieved from http://ingenios.info.ec/. Ingenios Act homepage. “Multimedia.” Retrieved from http://ingenios.info.ec/ videos. Note that as of 2019 this website has been deactivated. @CodigoINGENIOS; #CambiamosLaHistoria; “We are changing history.” Secretaría EduSuperiorEc. (19 March 2015). “Qué es el Código INGENIOS?” Retrieved from https://www.youtube.com/watch?v=hoeMQb_d8UE (accessed 11 December 2019). TeleSUR TV. (4 June 2015). “Nuevo Código de Ingenios en Ecuador busca transformación productiva.” Retrieved from https://www.youtube.com/watch?v=x1w_ FNswObk (accessed 11 December 2019). The 2008 Ecuadorian Constitution requires that prior to the approval of a new law whose provisions could affect the collective rights of Indigenous communes, communities, peoples, and nationalities and of the Afro-Ecuadorian and Montubio peoples, pre-legislative consultations must be conducted with these groups. Constitución de la República del Ecuador de 2008, Art. 57(17). Consultant from the FLOK Society involved with the making of the Ingenios Bill. (17 May 2016). Personal interview. Instituto Ecuatoriano de la Propiedad Intelectual. (3 July 2015). “Código INGENIOS es acogido con éxito en Argentina.” Boletín No. 29. Retrieved from https:// w w w.propiedadintelectual.gob.ec/codigo-ingenios-es-acogido-con-exito-enargentina/ (accessed 11 December 2019). Jefferson, D. J. (28 June 2016). “Código Ingenios: La reconceptualización de la propiedad intelectual en la mitad del mundo.” El Telégrafo. Retrieved from http://w w w.eltelegrafo.com.ec/not icias/sociedad/4/cod igo-ingenios-lareconceptualizacion-de-la-propiedad-intelectual-en-la-mitad-del-mundo (accessed 11 December 2019). AndesInfo. (23 June 2015). “Proyecto INGENIOS será objeto de estudio en La Sorbona de París.” Retrieved from http://www.andes.info.ec/es/noticias/proyectoingenios-sera-objeto-estudio-sorbona-paris.html (accessed 11 December 2019). See, e.g., Leader of the National Confederation of Peasant, Indigenous, and Black Organisations of Ecuador (FENOCIN). (3 May 2016). Personal Interview. Consultant from the FLOK Society involved with the making of the Ingenios Bill. (17 May 2016). Personal interview. Senior official from the Ecuadorian Intellectual Property Institute (16 April 2016). Personal interview.

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the South Centre.” Retrieved from https://www.southcentre.int/about-the-southcentre/ (accessed 11 December 2019). The Innovarte Corporation is an NGO based in Santiago, Chile, whose mission is “to build capacity to design, understand, and utilise a balanced system of intellectual property norms that would promote…economic and social development of communities.” Innovarte. (n/d). “Quiénes somos.” Retrieved from http://sitio.innovarte. cl/quienes-somos/ (accessed 11 December 2019). Academics from the Sorbonne in France, including Carlo Vercellone, openly expressed support for the Ingenios project. In 2015, the Ingenios Act was reportedly included as part of the curriculum of study for a doctoral programme in “cognitive capitalism” at the Sorbonne. IEPI (26 June 2015). “El Proyecto INGENIOS como modelo de estudio en la Universidad Sorbona de París.” Retrieved from https://www.propiedadintelectual.gob.ec/el-proyecto-ingenios-como-modelo-deestudio-en-la-universidad-sorbona-de-paris/. The Latin American Social Sciences Faculty (FLACSO) in Argentina analysed the Ingenios Act during a debate and socialisation event held in Buenos Aires in July 2015. IEPI (3 July 2015). “Código INGENIOS es acogido con éxito en Argentina.” Retrieved from https://www.propiedadintelectual.gob.ec/ codigo-ingenios-es-acogido-con-exito-en-argentina/. Note that Professor Correa is also the author of several works that analyse the policy space for patent and plant variety protection lawmaking under the TRIPS Agreement. These proposals are discussed in greater detail in Chapter 2 of this book. Carlos Correa, Professor at the University of Buenos Aires and Consultant with the South Centre. (21 March 2016). Personal interview. See also Correa, C. M. (2015). The Use of Compulsory Licenses in Latin America. In R. M. Hilty & K. C. Liu (Eds.) Compulsory Licensing. Heidelberg, Germany: Springer. p. 58 (stating that “no complaint has been submitted against countries that granted [compulsory licenses]/ government use under the WTO dispute settlement rules.”). Escobar, A. (2010). Latin America at a Crossroads: Alternative Modernizations, Post-Liberalism, or Post-Development? Cultural Studies, 24 (1), 1–65; Radcliffe, S. A. (2012). Development for a Postneoliberal Era? Sumak Kawsay, Living Well and the Limits to Decolonisation in Ecuador. Geoforum, 43 (2012), 240–249; Wilson, J. & Bayón, M. (2017). The Nature of Post-Neoliberalism: Building Bio-Socialism in the Ecuadorian Amazon. Geoforum, 81 (2017), 55–65. Consultant from FLOK Society who was involved in compiling comments concerning the Ingenios Bill. (17 May 2016). Personal interview; Senior official from the Ecuadorian Intellectual Property Institute. (16 April 2016). Personal interview. Senior official from the Ecuadorian Intellectual Property Institute. (16 April 2016). Personal interview. The first round of presidential elections was held on 19 February 2017. Rafael Correa was no longer eligible to run as a candidate, as term limits had been established in the 2008 Constitution. Thus, the contest was primarily between Correa’s Vice President, Lenín Moreno, and several opposition parties. However, no candidate was able to achieve more than the required popular vote margin in the first round, thus triggering a runoff election on 2 April 2017. Ultimately, Moreno won this election by a narrow margin of 51.15%, while the majority opposition candidate, Guillermo Lasso, called for a recount and protests erupted across the country. The Citizens’ Revolution is now positioned to remain in power until at least 2021, though its policies have become increasingly contested in recent years. Senior official from the Ecuadorian Intellectual Property Institute. (12 May 2016). Personal interview. Senior official from the Ecuadorian Intellectual Property Institute. (16 April 2016). Personal interview.

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6

The Ecuadorian approach to intellectual property for plants

In the 1990s, advocacy for the rights of campesinos, Indigenous and other Local Peoples (including minority ethnic communities, especially Afro-Ecuadorians and Montubios) began to gain visibility and amass political agency in Ecuador. Various social movements coalesced in the early 2000s, many of which advocated for the formal recognition of special rights for Indigenous and other Local Peoples specifically, and for campesino communities in general. As discussed in Chapters 1 and 5 of this book, many of these causes united under the banner of the Citizens’ Revolution, on whose platform Rafael Correa won the 2006 presidential election. During his first presidential campaign, Correa promised that one of the primary actions that he would take if elected would be to initiate the framing of a new, populist Constitution, which, among other elements, would incorporate the historically marginalised perspectives of campesinos, Indigenous nationalities, and minority ethnic communities to inform national governance. As we have already seen, this promise was effectively realised when a Constituent Assembly was held from November 2007 until October 2008.1 Ecuadorian Indigenous, ethnic, and campesino organisations participated in the mobilisation of citizens to support the constitutional reform process. These efforts were successful; the formation of the Constituent Assembly was approved by nearly 82 per cent of the Ecuadorian voting populace, and the final text was ratified via referendum by approximately 64 per cent of voters in October 2008.2 The groups that had advocated on behalf of campesinos and Indigenous and other Local Peoples considered the recognition of the new “buen vivir rights” in the 2008 Constitution to be a significant victory. Many of these organisations had sent delegates who participated directly in the drafting of the new constitutional text through the Constituent Assembly. The guarantees enshrined in the 2008 Constitution included new rights designed to protect the cultural identities of campesinos, Indigenous peoples, and minority ethnic communities; to ensure that these groups have access to land, water, and food; and to protect the natural environment and national biodiversity, which were issues that campesinos and Indigenous and other Local Peoples considered crucial to their lives. Given the breadth of the reforms, subsequent to the ratification of the 2008 Constitution, government officials, in dialogue with civil society, debated about how

The Ecuadorian approach  127 to rewrite various national legislative and regulatory frameworks to ensure that these laws would be consistent with the new constitutional guarantees. These reforms covered a vast range of subject matter, including laws governing culture,3 finance,4 higher education,5 and citizen participation in policymaking.6 Following this trend, the Ingenios project was launched in 2014 based on lawmakers’ perception that the then-current Intellectual Property Law of 1998 was not aligned with the principles of the version of buen vivir socialism that the 2008 Constitution was designed to advance. Similarly, other policy reform projects that are relevant to the governance of human-plant interactions in Ecuador have been undertaken in recent years. Notable initiatives included the development and enactment of a new law for agrobiodiversity, seeds, and sustainable agriculture, in addition to frameworks whose purpose was to protect Indigenous and traditional knowledge – including in relation to human uses of plants – and to institutionalise the concept of food sovereignty.7 Chapter 7 will analyse these new legal regimes in detail. Although several of the law reform efforts that Ecuador has carried out in recent years affect how interactions between human and vegetal beings are regulated in the country, arguably the most important of these is the new system of intellectual property for plants. This is because the revised framework for plant breeders’ rights that the Ingenios Act established can help us to understand the reasons for why the conventional, instrumental approach to governing humanplant relationships has proven durable over time. Thus, the Ingenios Act highlights the challenges inherent in experimenting with new ways of thinking about non-human life in legal systems, especially in the context of the international agreements to which many countries, including Ecuador, are bound. The Ecuadorian system of intellectual property for plants is an important site for analysis because of the various influences that shaped the lawmaking process, and the diverse interests that the new regime had to mediate. As described in Chapter 5, the officials responsible for drafting the Ingenios Act needed to navigate a series of challenges during the formation of the law, including constraints imposed by international agreements and pressures exerted by different factions of the Citizens’ Revolution government. Furthermore, these officials had to take into account the variegated nature of Ecuadorian agriculture, a sector in which the interests of industrial producers and campesino farmers – including those from Indigenous nationalities and minority ethnic groups – are starkly divided. For instance, while agribusiness propagated the standard narrative that plant breeders’ rights function as a tool to incentivise research and development towards plant genetic improvement and to ensure a financial return on investments,8 campesinos expressed concerns about the need to maintain and promote customary agricultural practices, including seed saving, exchange, and sale in local markets.9 An additional way in which the interests of industrial producers and campesino farmers diverged is that in practice, intellectual property is seldom relevant for the latter group. That is, as of 2019, the vast majority of the plant varieties protected as intellectual property in Ecuador were not food crops. Specifically, over

128  Experimenting with an eco-centric approach the period spanning from January 2015 to December 2019, 18 plant breeders’ rights applications were received for staple food crops, constituting just over 5.5 per cent of all applications lodged during that period.10 A further 45 applications claimed fruit crops, representing approximately 14 per cent of the total.11 In contrast, ornamental and industrial plants together accounted for over 80 per cent of the filings, with 250 and 10 applications, respectively.12 Of the 285 plant breeders’ rights certificates that were granted in Ecuador from January 2015 to December 2019, 234 (over 82 per cent) were for ornamental plants.13 Taking a time slice view, in 2016, when the Ingenios Act was being considered by the National Assembly, of the 291 plant varieties that had been registered in Ecuador as of that year, 92 per cent were flowers.14 Among the few food crops that had been protected with breeders’ rights as of 2016, only two staples were registered.15 These were a pair of rice varieties, and the ownership of both was assigned to a public agency, namely the Ecuadorian National Agricultural Research Institute. Aside from these two varieties of rice, by the end of 2016, all of the breeder’s rights certificates that had been granted for plants grown for food protected high-value specialty crops, such as artichokes, grapes, strawberries, mandarin oranges, and sugarcane, most of which were likely destined for export.16 This assumption is supported by the fact that as of 2019, approximately 84 per cent of all plant breeders’ rights certificates that had been granted in Ecuador were owned by foreign entities.17 During the making of the Ingenios Act, some civil society advocates argued that given the nature of the national agricultural sector, food crops should be excluded from the scope of intellectual property entirely. However, in general, the privatisation of ornamental plants was not contested. For instance, as one expert in campesino agriculture stated, “I am against intellectual property for seeds. If they are flowers…I think that is a question for the floriculturists. But if [intellectual property] gets involved in agriculture, it’s very complicated.”18 It is noteworthy that the Ecuadorian bureaucrats involved in the making of the Ingenios Act considered this idea when drafting the new chapter that would replace the plant breeders’ rights framework that the Intellectual Property Law of 1998 had created. One senior official from the Ecuadorian Intellectual Property Institute explained that the process of constructing the new framework was iterative: [I]f I’m honest, we’ve had a movement of positions. First…it began originally with a regulation in terms of the 1978 Act [of UPOV]. And then… it was modified with the possibility of maintaining the norms from UPOV 1991 that are featured in the Andean Decision [No. 345]. Then…the possibility was analysed of creating a differentiated regime for ornamental and food varieties.19 Thus, the officials responsible for drafting the texts that became the Ingenios Act considered certain innovative strategies for redesigning the Ecuadorian regime to regulate plants as intellectual property, such as creating a tiered system that would have mandated different criteria for the protection of ornamental plants in

The Ecuadorian approach  129 one category, and food crops in another category. Ultimately, this idea was not implemented, largely because officials believed that such a system would not be viable given the international obligations to which Ecuador was subject under the UPOV Convention and the Andean Community regional framework, and the likelihood that the country would execute a free trade agreement with the European Union in the near future.20 Nevertheless, the system for plant breeders’ rights that the Ingenios Act created does deviate from these conventional legal frameworks in certain ways. The following two sections explore the experimental and familiar elements of the law.

6.1 The reconstitution of the plant variety in the Ingenios Act To understand how plants were conceived as intellectual property in the Ingenios Act, it is important to return to the national governance model that the 2008 Constitution established. This is because one of the principal forces that motivated the reform of the Ecuadorian intellectual property regime as a whole was the need to institutionalise several of the novel guarantees that the new Constitution introduced. These included rights that are particularly relevant to the ordering of human-plant interactions, such as the rights of nature, the right to food, and other provisions designed to advance the “strategic objective” of food sovereignty. Additionally, the 2008 Constitution obligated the State to undertake a series of activities related to customary agricultural practices, including promoting campesino production; avoiding the dependence on food imports; preserving and recovering national agrobiodiversity and ancestral knowledge; and ensuring that seeds may be freely used, saved, and exchanged.21 The intention to balance the exclusive, proprietary rights granted to plant breeders with other legislative priorities is visible in the first article of the Ingenios Act that is concerned with intellectual property for plants. Here, the subject matter eligible for protection was delimited as “varieties pertaining to all plant genera and species provided that the cultivation, possession or utilisation thereof is not prohibited for reasons of human, animal or plant health, food sovereignty, food security and environmental security.”22 The language is significant because it means that at the time of writing, the Ingenios Act was the only intellectual property law for plants in the world to invoke the notion of food sovereignty as an explicit justification to exclude certain plant varieties from privatisation.23 This provision could potentially create a basis for the rejection of plant breeders’ rights applications that claim particular kinds of plant varieties, for instance, food crops that are derived from local landraces and that are popularly grown for local consumption. Nevertheless, it is difficult to discern how this exclusion might operate in practice, given that as of 2019, the provision had not yet been interpreted by the Ecuadorian judicial system. Another way that the Ingenios Act experimented with the standard, UPOVbased model of plant breeders’ rights is found in the categories of varieties that the law excluded from privatisation. In comparison to the Intellectual Property

130  Experimenting with an eco-centric approach Law of 1998, the Ingenios Act demonstrated a more nuanced and ecological understanding of human-plant relations. Thus, the Act specified that plant varieties may not be protected as intellectual property when (1) they are in a “wild, natural or native state,” (2) they “result from a mere discovery, except mutations,” or (3) “there exists or is implied a process of plant improvement derived from the simple, symbiotic, long-term relationship between the species and human beings.”24 This formulation departed from the conventional plant breeders’ rights model, because it explicitly recognised that plant genetic improvement is not a process that occurs exclusively through professional breeding. Instead, humans and plants constantly interrelate with one another, and they may co-evolve over the course of history. Through this language, the Ingenios Act implicitly acknowledged that farmers, like professional scientists, can act as plant breeders.25 Indeed, this section of the law suggested that farmers would be encouraged to register the varieties that they develop as intellectual property. Doing so would be possible because although plant varieties that result from a simple symbiotic, long-term relationship between the species and a person or a group of people are expressly excluded from protection, the insinuation is that varieties resulting from a complex symbiotic long-term relationship would be protectable. Research that has been conducted to understand the goals that motivate customary agriculture has shown that farmers often are driven by diverse objectives when they select and replant the seeds and other propagating materials of varieties that have desirable traits. Among other purposes, farmers who practise customary agriculture often intentionally engage in selection towards the ends of changing or conserving crop genetic variation.26 Under the terms of the Ingenios Act, such activity would likely be understood as a complex symbiotic, long-term human-plant relationship or, in other words, breeding. The intention of the Ingenios Act to recognise farmers as plant breeders due to their role in plant genetic improvement is also evident in other sections of the law. For instance, the creation of a new plant variety is defined as the resulting of a new variety through the application of scientific methods through conventional and non-conventional plant breeding techniques; and the empirical method based on experimentation and observation that farmers undertake to obtain improved varieties and varieties that are better adapted to their local reality, such as those obtained by natural mutations, provided that they comply with the requirements [for protection].27 This language explicitly conceived of farmers as agents who interact with the ecosystems in which they live, and whose intellectual contributions shape these environments in ways that create value. Such an understanding represents a more expansive approach in comparison to the UPOV Convention, which defines a “breeder” simply as “the person who bred, or discovered and developed, a variety.”28

The Ecuadorian approach  131 However, despite the various ways in which the Ingenios Act endeavoured to recognise farmers as plant breeders, it is unclear whether anyone other than a professional breeder realistically could meet the requirements for protection to obtain intellectual property under the new law. There are two primary reasons for this uncertainty. First, farmers’ plant varieties typically display higher levels of genetic variation than the varieties that professional breeders develop, 29 and the growing environments in which farmers operate are usually more mutable in space and time. Because of these factors, it may be difficult for farmers’ varieties to meet the UPOV-based uniformity and stability requirements for protection that the Ingenios Act reinscribed. Second, farmers’ plant varieties might not comply with the requirement of novelty. This is because campesino farmers in Ecuador, as in many countries, routinely exchange seeds with other people. For instance, a farmer might develop a plant variety that has never been sold commercially, but the farmer nevertheless may make the variety available to others through the customary practice of seed exchange. If such transactions were to occur for a period of time greater than one year prior to the date of filing of the application for plant breeders’ rights, the farmer’s variety would not be novel under the Ingenios Act. This is because it is likely that in such cases, the widespread utilisation of the variety would indicate that it was of “common knowledge” as defined in the law.30 Like Ecuador, certain other countries have recognised that farmers may act as plant breeders in their national systems of intellectual property for plants. Countries that already have this kind of legislation in force include India,31 Thailand,32 and Malaysia.33 In contrast to the system that the Ingenios Act instituted, these three countries all created separate categories for the protection of farmers’ plant varieties on the one hand, and for commercial or professional breeders’ varieties on the other hand. As of 2019, other governments, including those of Sri Lanka34 and Nepal,35 were also weighing the possibility of enacting similarly differentiated systems. The basis for the creation of a typology of plant varieties is the recognition that farmers may be understood as breeders, but that the UPOVbased requirements for protection may be challenging for farmers to meet. Under the sui generis plant variety protection laws of countries like India, Thailand, and Malaysia, farmers are usually required to meet relatively less stringent standards for protection in comparison to commercial or professional plant breeders. The rationale that justifies the relaxation of these requirements for farmers is that professional plant breeders are typically able to access sophisticated scientific tools, in addition to the necessary time and resources to conduct controlled breeding experiments towards the development of new, distinct, uniform, and stable plant varieties. In contrast, farmers’ efforts to effect plant genetic improvement customarily occur in the field, in parallel with other agricultural activities such as planting, harvesting, and seed sorting. Furthermore, the kind of trait selection that farmers perform is commonly based on phenotypic observation, while professional plant breeders may utilise advanced genetic screening techniques to obtain new varieties.

132  Experimenting with an eco-centric approach The Ecuadorian officials involved in the making of the Ingenios Act were aware of the precedents set by certain other countries, especially the exhaustively studied case of the Indian Protection of Plant Varieties and Farmers’ Rights Act of 2001.36 Nevertheless, the new Ecuadorian legislation did not place breeders’ and farmers’ plant varieties into separate categories. Instead, the Ingenios Act reinscribed the UPOV-derived novelty, distinctness, uniformity, and stability criteria for the protection of all types of plant varieties as intellectual property. Although numerous other provisions were modified in the Ingenios Act as compared to the Intellectual Property Law of 1998, these requirements remained essentially unaltered. The genealogy of the new Ecuadorian system of intellectual property for plants reveals that the criteria for protection that the Ingenios Act mandated have retained their essential form over time, dating to the first, 1961 Act of the UPOV Convention. This lineage is the logical result of Ecuador’s obligations as a member of UPOV 1978, which stipulated that signatories may not grant proprietary rights to plant breeders based on conditions other than novelty, distinctness, uniformity, and stability.37 Although Ecuadorian officials were able to experiment with certain doctrinal provisions during the making of the Ingenios Act, the requirements for protection were non-negotiable, at least at the level of legislation. However, understanding how the novelty, distinctness, uniformity, and stability criteria might operate in practice under the new Ecuadorian regime requires a deeper level of analysis than simply reading the text of the law. Even though the Ingenios Act did not create a separate mechanism for the registration of farmers’ plant varieties, officials were aware of the policy space that remained available in the regulatory, if not in the legislative realm. The existence of this opportunity for experimentation is evidenced in the General Regulations to the Ingenios Act, released as a presidential decree in May 2017. This framework stipulated that The competent authority in matters of intellectual [property] rights shall ensure the compliance with the principle of equality established in the Constitution of the Republic of Ecuador, guaranteeing the recognition of farmers’ rights. For the [evaluation of applications] for varieties obtained through the empirical method based on experimentation and observation that farmers realise, the same requirements as for varieties obtained through classical or modern plant biotechnological methods shall not be applied.38 Thus, according to the General Regulations, although the Ingenios Act did not alter the UPOV-based novelty, distinctness, uniformity, and stability requirements for protection, Ecuadorian officials should not assess farmers’ plant varieties according to the same standards as the varieties that professional breeders develop. As one official from the National Service for Intellectual Rights explained, this provision was included in recognition that it is unlikely that farmers who obtain new plant varieties via mass selection could provide the kind of scientific documentation that professional breeders who create new varieties through

The Ecuadorian approach  133 hybridisation or genetic engineering can make available.39 Although this is an innovative use of policy space in the administrative realm, it is notable that the General Regulations did not elaborate specific criteria for how to assess farmers’ plant varieties for prospective intellectual property protection. At the time when the General Regulations were published, Ecuadorian experts believed that a forthcoming framework of Technical Regulations would delimit the separate requirements for protection that plant breeders and farmers would need to meet to obtain intellectual property for their plant varieties. The process of formulating the Ingenios Technical Regulations began officially in October 2017, when the newly inaugurated National Service for Intellectual Rights organised a public dialogue in which 170 representatives from universities, technical institutes, public research institutions, law firms, non-profit organisations, and private businesses participated. At this event, governmental officials solicited comments from participants regarding the subject matter that would be addressed in the forthcoming administrative framework, including in relation to scientific research, intellectual property, and access to genetic resources.40 The comments received during the October 2017 event were incorporated into a first draft of the Ingenios Technical Regulations, a document that was written by officials at the National Service for Intellectual Rights. In July 2018, the text of the draft Technical Regulations was published in its entirety on an online platform, with sets of proposed provisions enumerated for the various forms of intellectual property that the Ingenios Act covered, including trademarks, patents, copyright, traditional knowledge, and plant breeders’ rights.41 A period of public comment was opened from July to September 2018, and during this time users were able to submit comments directly to officials at the National Service for Intellectual Rights through the virtual platform. Following the period of public comment, the website was deactivated. After reviewing the inputs received, the National Service for Intellectual Rights organised a series of roundtable discussions, to which it invited everyone who provided feedback through the online platform.42 Certain individuals who were unable to access the website in time but who still wanted to express their opinions were also welcomed to participate in the meetings. The roundtable discussions were organised by thematic area, such that different individuals attended specific meetings related to traditional knowledge protection, trademarks, patents, copyright, and plant breeders’ rights, respectively. Subsequently, officials at the National Service for Intellectual Rights worked to compile all of the comments received through the online platform and the roundtable discussions, and to generate a new draft of the Technical Regulations. The rulemaking process continued to unfold throughout 2019, during which time a comprehensive new draft of the Ingenios Technical Regulations was developed. The document that resulted from this undertaking was expansive, containing more than 500 articles and covering all of the forms of intellectual property that the Ingenios Act recognised, in addition to elaborating organisational and institutional protocols, establishing a system of collective management of “intellectual rights,” and specifying procedures and sanctions for the enforcement of

134  Experimenting with an eco-centric approach intellectual property violations. However, notwithstanding its exhaustiveness, the draft Technical Regulations did not delimit separate requirements for the protection of farmers’ varieties with plant breeders’ rights. In the definitions provided in the plant breeders’ rights section, the draft Technical Regulations recognised that the meaning of the “process of plant improvement” would include “the empirical method based on the observation and experimentation that farmers realise to obtain improved varieties that are adapted to their local reality.”43 However, the provisions of the Regulations that defined procedures for conducting a test for distinctness, uniformity, and stability did not specify different standards that should be met depending on the identity of the applicant.44 This lack of differentiation contrasts with the express stipulation of the General Regulations that the assessment of farmers’ plant varieties should not be subjected to the same requirements as for varieties “obtained through classical or modern plant biotechnological methods.” One option to address this discrepancy would be to specify in the Technical Regulations that farmers’ plant varieties only generally need to meet the criteria of uniformity or stability. A similar strategy has been considered in other countries, including Nepal, as will be discussed below.45 In October 2018, officials from the National Service for Intellectual Rights confirmed that they were weighing this option, and in any event, these administrators clearly intended to create a system that would encourage farmers to protect the varieties that they develop.46 However, after more than one year of rulemaking, no provisions for farmers’ varieties had been incorporated into the comprehensive version of the draft Technical Regulations, which appeared to be on the verge of adoption in late 2019. If Ecuadorian officials do not recognise separate or more flexible requirements for the registration of farmers’ varieties with plant breeders’ rights, they would miss the opportunity to utilise the policy space that remains available under international law. Although it is understandable that governmental administrators would not want to jeopardise the compliance of the country with its treaty obligations, the UPOV Convention should not constrain their ability to experiment with local definitions of the distinctness, uniformity, and stability requirements for plant breeders’ rights. This is because the Convention did not provide precise, technical definitions of the criteria for protection, offering only vague, general descriptions of these concepts. For instance, uniformity may be determined to exist when a variety is “sufficiently uniform in its relevant characteristics,”47 but the meaning of “sufficiently uniform” was not elaborated. Furthermore, what constitutes “sufficiently uniform” may differ from one species of plant to another, such that “the level of uniformity for truly self-pollinated varieties, mainly self-pollinated varieties, inbred lines of hybrid varieties, vegetatively propagated varieties, mainly cross-pollinated varieties, synthetic varieties, and hybrid varieties will, in general, be different.”48 Due to the difficulty of translating the exact parameters of uniformity and stability into technical terms to guide field-testing, UPOV allows members of

The Ecuadorian approach  135 the Convention to develop their own national-level regulatory frameworks. This means that the Ingenios Technical Regulations could ostensibly recognise different definitions of uniformity and stability for farmers’ and professional breeders’ plant varieties. Acknowledging the ambiguities involved in translating these concepts into bureaucratic protocols, the UPOV Council has developed a set of guidance documents to help signatories’ national governments to navigate the complexity of conducting field-testing. However, the character of these documents is informative, and they state explicitly, “[t]he only binding obligations on members of the Union are those contained in the text of the UPOV Convention itself.”49 In other words, governments are free to define uniformity and stability in a manner that would be best suited to locally relevant conditions for the various species of plants that are cultivated within national borders. Notwithstanding the existence of this policy space, the idea of defining the distinctness, uniformity, and stability criteria differentially based on the identity of the applicant for plant breeders’ rights is untested. The UPOV Council has never addressed this issue expressly, although UPOV guidance documents have elaborated several methods for the evaluation of uniformity and stability based on the rationale that variation in the expression of relevant characteristics within varieties has both genetic and environmental components.50 At least a few territories have experimented with the definition of separate registration requirements for professional breeders’ varieties on the one hand, and farmers’ plant varieties on the other hand. For instance, as mentioned earlier, the draft plant variety protection framework of Nepal does not situate farmers’ varieties and professional breeders’ varieties in separate formal categories. However, in recognition that farmers’ varieties frequently originate from native or local plant varieties whose traits are often expressed heterogeneously,51 under the proposed Nepali framework, farmers’ varieties would only be expected to “generally” meet the criteria of uniformity and stability to receive protection.52 The strategy that Ecuador could undertake in the Ingenios Technical Regulations is similar to the model that Nepal is considering. If the Ingenios Technical Regulations were written to mandate different acceptable ranges of uniformity and stability for farmers’ varieties and professional breeders’ varieties, it might be more likely that campesinos could meet the conditions required to obtain intellectual property. However, while this policy might recalibrate the Ecuadorian system of intellectual property for plants in a way that would generate greater social equity between different groups of people, it would probably not fundamentally transform how human-plant relations are governed. Facilitating the registration of farmers’ varieties might bring different types of plants into the ambit of the law, such as those which are culturally important but that in utilitarian economic terms do not command significant market value. However, enabling campesinos to obtain intellectual property for the plant varieties that they develop might extend the instrumental approach to the regulation of vegetal life by encouraging farmers to “think like entrepreneurs”53 and in so doing translate their knowledge of plants into the rationality of neoliberal capitalism.

136  Experimenting with an eco-centric approach

6.2 The limits of intellectual property for plants in the Ingenios Act As Chapter 3 of this book described, the making of the Ingenios Act did not occur in a vacuum. Instead, officials needed to balance aspirational policy objectives with the formal legal constraints of the international instruments to which the Ecuadorian government had previously committed. One of the most relevant of these was Decision 345 of the Andean Community, which since 1993 has mandated a framework for plant breeders’ rights to which Community members must adhere. Ecuador is also an independent member of the 1978 Act of UPOV, but because the UPOV administration has evaluated Decision 345 and determined that it complies with UPOV 1978,54 the present analysis centres on understanding the extent to which the Ingenios Act reproduces the Andean Community regime. The ways in which the new Ecuadorian law deviated from Decision 345 illustrate how lawmakers attempted to exploit the lacunae in the Andean Community and UPOV models. One area in which the Ingenios Act substantially diverged from the model of Decision 345 concerns instances in which the breeder’s authorisation is not required to use a protected variety. Decision 345 created an exception that allows anyone to use a protected plant variety for experimental purposes without permission from the intellectual property owner.55 The Ingenios Act reinscribed this limitation, but the new law also exempted from infringement acts that are conducted for the purposes of teaching or for scientific or academic research.56 While this change may appear to be minor, the exception for the use of protected plant varieties for teaching could have benefits for students and farmers alike. This could be the case if proprietary varieties were used as the basis for agronomic or botanical education or in agricultural extension services. Similarly, the Ingenios Act expanded the exceptions to plant breeders’ rights to include the use of protected varieties by farmers – the so-called farmer’s privilege – in a variety of circumstances. The Ingenios Act and Decision 345 both specified that plant breeders’ rights would not include the ability to prevent third parties from using a protected variety for private, non-commercial purposes; for experimental purposes; or for the breeding or exploitation of a new variety.57 However, the Ingenios system enlarged the ambit of the farmer’s privilege to permit farmers to use intellectual property-protected plant varieties for several additional reasons. These include reproduction and exchange with other farmers for the purposes of multiplication of seed or other propagating material, on the condition that such activities would not extend to production of the variety for commercial purposes.58 Additionally, under the Ingenios Act farmers may use proprietary plant varieties to realise diverse ends in the context of “ancestral agricultural practices or in a traditional communitarian ambit,” including selling or exchanging seeds or other material derived from a protected variety.59 The limitation of plant breeders’ rights to allow for limited commercial uses of protected varieties constitutes an important deviation from the UPOV Convention. Under both UPOV 1978

The Ecuadorian approach  137 and UPOV 1991, the scope of the farmer’s privilege only encompassed unauthorised use of proprietary plant varieties for non-commercial purposes. Therefore, this provision of the Ingenios framework represents a notable attempt by lawmakers to restructure relationships between the owners and users of intellectual property while taking into account how agriculture is customarily practised in Ecuador. Additional differences between the Andean Community legislation and the Ingenios Act relate to the principle of exhaustion of plant breeders’ rights. Decision 345 did not include any language related to exhaustion, nor did the 1961/1972 or 1978 Acts of the UPOV Convention, although exhaustion provisions did appear in UPOV 1991.60 For its part, the Ingenios Act extensively enumerated situations in which plant breeders’ rights may be considered to be exhausted. Thus, the rights granted under the Ecuadorian framework do not include the ability to prevent third parties from using the protected material once it has been introduced into the stream of commerce of any country with the consent of the breeder, the breeder’s licensee, or any person economically linked to the breeder or the licensee.61 In contrast to the Ingenios system, the 1991 Act of the UPOV Convention limited exhaustion such that plant breeders’ rights would not extend to acts concerning material of a protected variety that has been commercialised “in the territory of the Contracting Party concerned.”62 This provision was rendered much broader in the Ingenios Act, because the owner of a proprietary variety would not be able to prevent third parties from using the variety once it has been introduced into the stream of commerce of any country. It could be argued that the Ingenios Act took advantage of policy space that existed in Decision 345, which provided that members of the Andean Community “may adopt means to regulate or control in their territories, the production or the commercialisation, importation or exportation of the reproductive or multiplying material of a variety,” so long as these measures do not impede or repudiate the proprietary rights of plant breeders.63 However, it is also possible that the exhaustion provisions in the Ingenios Act could be challenged under UPOV 1978, which stipulated that “[t]he free exercise of the exclusive right accorded to the breeder may not be restricted otherwise than for reasons of public interest.”64 In addition to expanding the exceptions to plant breeders’ rights, the Ingenios Act also developed certain ideas that Decision 345 included but had outlined in relatively more conservative terms. This phenomenon is illustrated by comparing the two regimes’ provisions on compulsory licencing. Decision 345 permitted compulsory licences to be granted in limited circumstances, such that in “exceptional cases of national security or public interest, the National Governments may declare [a protected plant variety] freely available, on the basis of equitable compensation for the breeder.”65 In contrast, under the Ingenios Act, an expanded compulsory licencing framework would allow for the liberation of protected varieties for more diverse reasons. These include for reasons of public interest, national emergency or security,66 anticompetitive practices,67 or when the right-holder of a patent cannot

138  Experimenting with an eco-centric approach commercially exploit a patented invention without utilising the protected variety.68 Although the Ingenios framework substantially enlarged the grounds based on which compulsory licences may be granted, the law still attempted to comply with an express obligation under UPOV 1978. The relevant provision specified that where the proprietary rights of a plant breeder are restricted to permit the widespread distribution of the protected variety, the government “shall take all measures necessary to ensure that the breeder receives equitable remuneration.”69 In addition to broadening certain basic provisions of Decision 345, the Ingenios Act also introduced novel measures in an attempt to align the Ecuadorian system of plant breeders’ rights with other laws related to the governance of different kinds of plants. These included the applicable domestic and regional frameworks for access and benefit sharing. Since 1996, the Andean Community has upheld its obligations under the Convention on Biological Diversity by regulating issues of access and benefit sharing at the regional level, through a framework created in Decision 391.70 While the Andean Community plant breeders’ rights legislation did not include provisions on access and benefit sharing, the Ingenios Act endeavoured to amalgamate intellectual property for plants with the spirit of Decision 391. For instance, the Ingenios system included nullity provisions that were designed to redress violations of the Ecuadorian access and benefit sharing law. Thus, plant breeders’ rights may be declared null and void if a copy of the access agreement was not presented as part of the application, where the protected variety was developed based on genetic resources sourced from Ecuador or other Andean Community members.71 It is unclear whether this provision could be challenged for exceeding the parameters of nullity that UPOV 1978 outlined. This version of the UPOV Convention allowed governments to declare the breeder’s right to be null if “[the breeder] does not provide the competent authority with the reproductive or propagating material [or] the documents and the information necessary for checking the variety.”72 The meaning of “necessary documents and information” arguably could be construed to include the access agreement, although “checking the variety” in the UPOV context likely refers to conducting tests for distinctness, uniformity, and stability rather than verifying the provenance of source material used for plant breeding. Furthermore, it is notable that UPOV 1978 did not allow plant breeders’ rights to be annulled except on the grounds that were expressly enumerated in the UPOV Convention.73 The UPOV Council has previously expressed its support for laws regulating access to genetic resources and equitable benefit sharing, stating that UPOV encourages the principles of transparency and ethical behaviour in the course of conducting breeding activities and, in this regard, the access to the genetic material used for the development of a new variety should be done respecting the legal framework of the country of origin of the genetic material.74

The Ecuadorian approach  139 However, the UPOV Council has also emphasised that issues related to access and benefit sharing fall outside of the scope of the UPOV Convention. Specifically, the Council has stated, “The competent authority for the grant of the breeder’s rights is not in a position to verify whether the access to genetic material has taken place in accordance with the applicable law in this field.”75 This statement suggests that UPOV might consider the nullity language included in the Ingenios Act to exceed the scope of the Convention, although to date the UPOV Council has not published any guidance documents on this issue. In addition, UPOV has declared unequivocally that “the UPOV Convention requires that the breeder’s right should not be subject to any further or different conditions than the ones required to obtain protection.”76 This means that according to the 1978 Act of the Convention, UPOV signatories cannot require the access agreement to be presented as a requirement for the grant of plant breeders’ rights.77 In the Ingenios Act, Ecuadorian lawmakers circumvented this limitation by requiring the access agreement to be provided not as a condition to obtain intellectual property, but under an independent legal regime.78 Thus, failure to submit a copy of the access agreement was conceptualised as a violation of the access and benefit sharing law, not as a deficiency in compliance with the requirements for plant breeders’ rights. This represents a clever attempt to exploit the available policy space while remaining consistent with UPOV 1978. Another area in which the Ingenios Act deviated from the Andean Community framework relates to the question of whether plant breeders’ rights should be extended to cover essentially derived varieties. This concept was defined in Decision 345 as follows: [A] variety shall be deemed to be essentially derived from an initial variety when it originated therefrom or from a variety itself essentially derived from the initial variety and it retains the expression of the essential characteristics that result from the genotype or combination of genotypes of the original variety, and which although distinguishable from the initial variety, nevertheless conforms to it in the expression of the essential characteristics that result from the genotype or combination of genotypes of the initial variety, except with respect to differences resulting from the derivation process.79 It is notable that Decision 345 did not require Andean Community members to offer protection for essentially derived varieties, but rather afforded national authorities the option to do so.80 The concept of essential derivation was introduced for the first time in the 1991 Act of the UPOV Convention. The inclusion of this idea within the scope of plant breeders’ rights was designed to respond to advances in molecular breeding techniques and biotechnology that occurred during the 1980s and 1990s, which had facilitated more rapid and precise development of new plant varieties. In this context, there was concern that protected varieties could be “plagiarised,” that “copycat breeding” would occur, or that “mimic,” “imitation,”

140  Experimenting with an eco-centric approach or merely “cosmetic” varieties would be developed and protected with plant breeders’ rights by parties other than the original breeder.81 Although since 1991, language related to essentially derived varieties has been incorporated into numerous national-level intellectual property laws for plants, considerable confusion still exists about how to determine a suitable threshold for essential derivation.82 By eliminating essentially derived varieties from the scope of plant breeders’ rights, the Ingenios Act avoided the difficulties inherent in determining how to concretely regulate this concept. However, the Ecuadorian government has separately argued that exploiting the notion of essential derivation could offer a mechanism for protection against the misappropriation of farmers’ plant varieties,83 which may be used as source material in breeding programmes. Indeed, scholars have suggested that the concept of essential derivation could be extended beyond the scope of plant breeders’ rights laws to include plants that are listed in registries of farmers’ varieties. Under such a paradigm, authorisation from the farmer would be required to develop a new plant variety if the farmer’s variety was used as initial breeding material.84 Ecuador is not obligated under the terms of Decision 345 or the 1978 Act of the UPOV Convention to include essentially derived varieties in its national intellectual property law for plants. As such, the Ingenios Act complies with the country’s international obligations related to the protection of essentially derived varieties. However, the decision not to include essentially derived varieties within the scope of intellectual property in the Ingenios Act could represent a missed opportunity to take advantage of the available policy space in a way that would create a means to protect farmers’ plant varieties. Overall, in comparison to the international standards that Ecuador is legally bound to follow, the embodiment of plants as intellectual property in the Ingenios Act contains several distinct features. These include the expansion of the farmer’s privilege, the enumeration of new grounds for the exhaustion and nullification of plant breeders’ rights, and the addition of novel reasons based on which compulsory licences may be granted. Additionally, the 2017 General Regulations to the Ingenios Act utilised the policy space available at the administrative level, by differentiating between breeders’ and farmers’ plant varieties for the evaluation of uniformity and stability. However, as described earlier, it appears that the forthcoming Ingenios Technical Regulations will not take advantage of this opportunity. The terms of the Ingenios Act generally represent an attempt to balance the privatisation of certain plant varieties with other national policy goals. The provisions discussed above exploit ambiguities and gaps that exist in the 1978 Act of the UPOV Convention and in Andean Community Decision 345. In some instances, the Ingenios Act probed the limits of lawmaking for the regulation of plants as intellectual property under these international agreements. The officials involved in the making of the Ingenios Act were careful not to undermine Ecuador’s treaty obligations directly, except for one obvious discrepancy with Decision 345 concerning the duration of exclusivity for plant breeders’ rights.

The Ecuadorian approach  141 Under the Andean Community framework, members must grant a term of protection “from 20 to 25 years for the case of vines, forest and fruit trees including their rootstocks and, from 15 to 20 years for all other species.”85 However, the Ingenios Act only allowed for 18 years of exclusivity to be obtained for vines, forest, fruit, and ornamental trees.86 To further complicate the matter, the minimum periods of protection provided in the Ingenios Act are the same as those mandated by UPOV 1978, at 18 years for vines, forest, fruit, and ornamental trees and 15 years for all other species.87 Thus, although the Ingenios Act conforms with UPOV 1978, Ecuador could be challenged within the Andean Community for non-compliance with the minimum standards established in Decision 345. Similarly, Ecuador could eventually witness a confrontation between the system of intellectual property for plants that the Ingenios Act established and the parameters of the 2016 European Union–Ecuador free trade agreement. As discussed in Chapter 3, the intellectual property section of this accord stated that the other parties to the treaty – which are the European Union, Colombia, and Peru – “shall cooperate to promote and ensure the protection of plant varieties based on [UPOV], as revised on 19 March 1991.”88 However, a footnote associated with the same article provided that “[a]t the moment of signature of this Agreement, [UPOV 1978] applies for Ecuador.”89 If Ecuador were pressured to revise the new system for plant breeders’ rights that the Ingenios Act established, numerous provisions would likely need to be reformed to meet the minimum standards mandated under the 1991 Act of the UPOV Convention. Discrepancies that would need to be addressed include the periods of exclusivity for registered plant varieties, the farmer’s privilege, exhaustion, nullity, and the expansion of plant breeders’ rights to cover essentially derived varieties. For instance, the minimum periods of protection mandated in UPOV 1991 are 25 years from the grant date for trees and vines and 20 years for all other species.90 As discussed above, the terms of exclusivity that the Ingenios Act recognised are shorter, at 18 years for vines, forest, fruit, and ornamental trees, and 15 years for all other species. Likewise, the farmers’ privilege that the Ingenios system inscribed would likely need to be curtailed if Ecuador were required to comply with UPOV 1991. As currently written, the Ingenios Act recognised exceptions to plant breeders’ rights for use of protected varieties “for non-profit sale or exchange of the product [of the variety] as raw material or food.” 91 Also exempted were uses of proprietary plant varieties “in the context of ancestral agricultural practices or in a traditional agricultural communitarian sphere,” including the non-profit sale or exchange of such varieties.92 In contrast, UPOV 1991 only provided a limited “optional exception” that signatory countries may incorporate into their national plant breeders’ rights laws. This version of the farmer’s privilege would allow UPOV 1991 members to, within reasonable limits and subject to the safeguarding of the legitimate interests of the breeder, restrict the breeder’s right in relation to any variety

142  Experimenting with an eco-centric approach in order to permit farmers to use for propagating purposes, on their own holdings, the product of the harvest which they have obtained by planting, on their own holdings, the protected variety.93 This provision is substantially more limited than the current farmer’s privilege provision of the Ingenios Act, which extends far beyond farmer’s own holdings to protect traditional agricultural practices that occur at the interpersonal and community levels. Additionally, if the Ingenios Act were required to conform to the 1991 Act of the UPOV Convention, the current exhaustion provisions would likely need to be amended. Under UPOV 1991, “the breeders’ right does not extend to acts concerning any material of the protected variety…which has been sold or otherwise marketed by the breeder or with his consent in the territory of the Contracting Party concerned.” 94 The Ingenios Act conceived of exhaustion in much broader terms, declaring that the proprietary rights of plant breeders do not include the right to stop a third party from realising acts with respect to the material of [the breeders’] variety…after this material has been introduced into the [stream of] commerce of any country with the consent of the owner, a licensee, a person economically linked to the owner or licensee, or any other authorised person.95 This provision would effectively permit the parallel importation of protected plant varieties. In other words, if a plant variety that was protected in Ecuador were sold in another country, seed from this variety could ostensibly be imported into Ecuador and commercialised there without the consent of the rightholder. Such an outcome could increase Ecuadorian farmers’ access to improved germplasm, but it is not a model that would be compatible with the UPOV 1991 framework.96 A further discrepancy between UPOV 1991 and the Ingenios Act is that the latter regime would allow for plant breeders’ rights to be nullified if a copy of the access agreement has not been presented, when the variety has been obtained or developed through genetic resources or the products thereof derived from those for which Ecuador or any of the Andean Community member countries is the country of origin.97 Similar language was not included in UPOV 1991. UPOV officials and independent scholars alike have affirmed that the UPOV system and the global biodiversity treaties that cover access and benefit sharing (i.e. the CBD, the Nagoya Protocol, and the Plant Treaty) are not inherently incompatible.98 However, as of 2019, the UPOV Council had not specifically commented on whether failure to include a copy of the access agreement would be an appropriate basis to nullify plant breeders’ rights under the terms of the Convention. Finally, and as

The Ecuadorian approach  143 noted above, if the Ingenios Act were required to conform with UPOV 1991, the provisions concerning essentially derived varieties – which were included in the Intellectual Property Law of 1998 – would need to be reinstated. During the making of the Ingenios Act, the officials involved in generating drafts of the law were acutely aware of the various international obligations to which Ecuador is subject. Commensurately, these actors were familiar with the regimes with which Ecuador did not need to conform, especially UPOV 1991. When drafting and marketing the text of the Ingenios Bill, lawmakers consistently invoked the notion of “cognitive capitalism,” which they alleged was promoted through international alliances with wealthy capitalist countries, including via free trade agreements. René Ramírez, whom we know as one of the principal visionaries behind the Ingenios Act, contended that such treaties, coupled with the global ratcheting-up of intellectual property minimum standards, have subjected Ecuador “to an [intellectual property] system that induces dependence on knowledge generated in countries in the North.” 99 In its section on intellectual property for plants, the Ingenios Act attempted to resist cognitive capitalism by counterbalancing plant breeders’ rights with protections for other constituencies, including especially campesino farmers. At the same time, the Ingenios Act essentially replicated the UPOV Convention model of intellectual property for plants. This fact illustrates the extent to which an instrumental approach to ordering human-plant relations influenced lawmakers’ perceptions of the imaginaries available, even in a country where officials were well aware of the formal legal space that existed in the context of treaty obligations. While it is true that Ecuador is legally bound to the UPOV Convention, officials could have experimented with the plant breeders’ rights template to a greater extent than was the case during the making of the Ingenios Act. For instance, as described earlier, Ecuador could have recognised differentiated criteria for the protection of different types of plant varieties, to encourage farmers to register the varieties that they develop. Similarly, lawmakers could have created a system that would only protect ornamentals or other commodity plants and not food crops. This is because UPOV 1978 merely requires that member countries offer plant breeders’ rights for at least 24 botanical genera or species in total.100 One example of how the standard approach to intellectual property for plants influenced the Ecuadorian Ingenios Act is visible in how lawmakers conceptualised national development. Although Citizens’ Revolution officials regularly proclaimed the desire to institutionalise an “alternative to development”101 encapsulated in policies that espoused an aspiration towards buen vivir, in practice this concept was often mobilised in the service of conventional strategies designed to promote economic growth.102 A concrete manifestation of this trend was the execution of the 2016 free trade agreement with the European Union – an instrument that contained stricter minimum standards for intellectual property than those to which the country previously was subject – a mere one month before the Ingenios Act entered into force. This contradiction illustrates the complexity of interests at play in Ecuador’s attempt to remake its system of intellectual property for plants in a way that

144  Experimenting with an eco-centric approach would renew and strengthen the buen vivir guarantees that the 2008 Constitution recognised, including the rights of nature. Although the framing language that the Ingenios Act employed was explicitly ambitious, the law implicitly reproduced the conventional narrative that intellectual property should be conceived as a tool for economic growth, which could be achieved by incentivising innovation and rewarding the creation of novel market goods through the recognition of exclusive commercial exploitation rights. However, it is important to acknowledge that concurrent with the making of the revised system of intellectual property for plants, Ecuadorian officials also experimented with the formation of other novel legal frameworks that could offer insights into how human-plant relationships might be regulated according to alternative rationalities. These include systems to govern the conservation of agrobiodiversity, the circulation of seeds, the protection and promotion of traditional knowledge, and the realisation of food sovereignty, as the next chapter will discuss.

Notes

The Ecuadorian approach  145

146  Experimenting with an eco-centric approach

The Ecuadorian approach  147

148  Experimenting with an eco-centric approach

97 98

99 100 101

102

Uruguay. Amsterdam, The Netherlands: Inter-American Institute for Cooperation on Agriculture, University of Amsterdam. p. 36. Ingenios Act, Art. 498(3). See, e.g., Button, P. (2016). Overview of the UPOV Convention. Proceedings of the Symposium on Possible Interrelations between the International Treaty on Plant Genetic Resources for Food and Agriculture (ITPGRFA) and the International Convention for the Protection of New Varieties of Plants (UPOV Convention). Geneva, Switzerland, 26 October 2016; Lawson, C. (2015). The Breeder’s Exemption under UPOV 1991, the Convention on Biological Diversity and its Nagoya Protocol. Journal of Intellectual Property Law & Practice, 10 (7), 526–535. Ramírez Gallegos, R. (2014). La Virtud de los Comunes: De los Paraísos Fiscales al Paraíso de los Conocimientos Abiertos. Quito, Ecuador: Abya-Yala. p. 30. UPOV 1978, Art. 4(3)(b)(iii). Gudynas, E. (2011). Buen Vivir: Germinando Alternativas al Desarrollo. América Latina en Movimiento, 462, 1–20; Gudynas, E. (2011). Buen Vivir: Today’s Tomorrow. Development, 54 (4), 441–447; Acosta, A. (2013). El Buen Vivir: Sumak Kawsay, Una Oportunidad para Imaginar Otros Mundos. Barcelona: Icaria; Gudynas, E. & Acosta, A. (2011). La Renovación de la Crítica al Desarrollo y el Buen Vivir como Alternativa. Utopía y Praxis Latinoamericana, 16 (53), 71–83. Escobar, A. (2010). Latin America at a Crossroads: Alternative Modernizations, Post-Liberalism, or Post-Development? Cultural Studies, 24 (1), 1–65; Wilson, J. & Bayón, M. (2017). The Nature of Post-Neoliberalism: Building Bio-Socialism in the Ecuadorian Amazon. Geoforum, 81 (2017), 55–65.

7

Alternatives to conventional legal imaginaries for humanplant interactions

As Chapter 2 of this book described, it was not until around the turn of the twentieth century that the law systematically began to pay attention to plants. At that time, the regulation of vegetal life became a priority as scientific and industrial processes increasingly intertwined with agriculture and food production. The project of transforming plants into intellectual property was completed by the middle of the twentieth century, and by the dawn of the new millennium, this paradigm had spread to nearly every country on Earth (see Chapter 3). Concurrently, as Chapter 4 explained, other goals motivated the formation of new regimes to govern vegetal life, which included the aim to conserve agrobiodiversity. Today, while legal systems that treat plants as a matter of concern have proliferated, they overwhelmingly operate according to a common essential logic. That is, the law tends to view plants instrumentally, anthropocentrically focussing on how vegetal life may be utilised to fulfil rationalist utilitarian and economic ends. The idea of an ecological turn in lawmaking, as we have seen in earlier chapters, posits that the law should take plants seriously as life forms deserving of protection in their own right, and not merely because of their usefulness to people or their exchange value in human markets. Precedents set by recent lawmaking experiments in Ecuador demonstrate that legal systems can be remade according to an eco-centric vision. As Chapters 1 and 5 depicted, the 2008 Constitution recognised a series of rights for Pachamama, which, in part, have ostensibly motivated subsequent efforts to reform other national legal frameworks, including the Ecuadorian system of intellectual property for plants. However, Chapter 6 showed that notwithstanding its ambitious aspirations, the Ingenios Act largely recapitulated the plant breeders’ rights model of intellectual property for plants that the UPOV Convention originally devised. The task of the current chapter is to scrutinise whether other recently enacted Ecuadorian regimes could regulate human-plant relationships according to rationalities alternative to intellectual property. The laws that are reviewed below include a new framework for agrobiodiversity, seeds, and the promotion of sustainable agriculture; the system of protection for Indigenous and traditional knowledge that the Ingenios Act created; and the national food sovereignty regime. The overarching inquiry that underpins the foregoing analysis

150  Experimenting with an eco-centric approach is, has Ecuador managed to reconstitute human-plant interactions in innovative legislative and regulatory initiatives that have been formulated outside of the realm of what is conventionally conceived of as intellectual property? As the foregoing sections will demonstrate, although in some ways the governance of human encounters with vegetal life has been reimagined, the Ecuadorian experience demonstrates that it is not easy to deviate from dominant ways of thinking, or to transcend anthropocentrism in lawmaking.

7.1 Seed law as an alternative to intellectual property Although today intellectual property laws represent the dominant legal means for ordering human-plant interactions, other types of regimes are also relevant to an analysis of how the law treats vegetal life. Frameworks that regulate the control and circulation of seeds are particularly important mechanisms to set the terms for anthropocentric uses of plants, especially for alimentary and agricultural purposes. The significance of seed laws is based on the fact that seeds perform many functions in farming, food production, and the maintenance of local biodiversity. Seeds act as carriers of genetic information based on which vegetal life evolves, and as the loci for interactions between plants and other non-human life forms.1 Meanwhile, humans utilise seeds as key inputs for crop production, as economic goods that can be traded, and in many instances, as expressions of culture, and as embodiments of ancestral knowledge.2 Notably, seed laws and policies do not necessarily follow the same proprietary logic as systems that grant intellectual property for plants. While it is true that in many countries, seed laws have historically focussed on stimulating private enterprise – a goal similar to the aims that are frequently associated with plant breeders’ rights legislation – in recent years, some governments have shifted their attention towards enacting reforms that would promote “integrated seed systems.”3 This concept acknowledges the importance of the parallel and mutually supportive development of seeds generated by professional plant breeders and multipliers on the one hand, and by small-scale farmers on the other hand. Although laws designed to bolster integrated seed systems tend to employ an instrumental approach to the regulation of vegetal life, they may also provide insights about how to reimagine the formal ordering of human-plant relationships. In Ecuador, several national initiatives that were designed to support the development of integrated seed systems have been launched in recent years. For instance, in 2012, the Ecuadorian Ministry of Agriculture unveiled an “Integrated Project for Sustainable Agricultural, Environmental, and Social Development,” whose purpose was to foment complementarity in national agricultural production by blending new technologies and customary agrarian practices.4 Similarly, the current (2017–2021) “National Plan for Buen Vivir,” a document that elaborated the social and economic development strategy of the Ecuadorian government, established the “Great Agricultural Minga,”5 whose purpose was to foster campesino, Indigenous, and familial agricultural systems.6 One of the specific aims of this strategy was to distribute subsidised seed “kits,” which would

Conventional legal imaginaries  151 contain “certified” seeds and other inputs, to small-scale farmers.7 Although this programme endeavoured to support campesino agriculture, the reliance on certified seeds is problematic, for reasons that will be explained later in this section. Complementing these strategic planning initiatives, in June 2017, the Ecuadorian National Assembly enacted a new Law for Agrobiodiversity, Seeds, and the Promotion of Sustainable Agriculture 8 (hereafter the “2017 Seed Law”). As with intellectual property, Ecuador already had national legislation to regulate seeds in place for many years prior to the ratification of the 2017 Seed Law. However, like the Ingenios Act, the new regime for the regulation of seeds was designed to reconfigure the approach to the governance of human interactions with Pachamama in a way that would conform to the 2008 Constitution and the version of buen vivir socialism that the new constitutional regime had advanced. Thus, in contrast to the former framework for seed regulation, the 2017 Seed Law did not merely provide a system of standardisation and quality control for the seeds that circulate in Ecuadorian markets. Instead, the new system was envisaged as synthesising diverse goals, including promoting organic agriculture, ensuring the conservation and sustainable use of plant genetic resources, protecting customary agricultural practices, and guaranteeing food security and food sovereignty. Scholars and civil society activists alike criticised the “first-generation” national seed laws in the Andean region, arguing that these regimes subordinated customary agricultural practices to industrial systems for crop production by consolidating control over the circulation and utilisation of seeds.9 Particular concern revolved around the contention that the requirements for registration and certification in these laws were frequently too strict for the seeds of native or local (landrace) plant varieties to meet. Under first-generation regimes, if the seeds of landrace varieties were not registered, but if people continued to use them, customary seed management practices could have been effectively marginalised or even criminalised.10 Critics linked the first-generation Ecuadorian seed law to the country’s experience with the Green Revolution, which they claim was characterised by the expansion of crop monocultures, and the proliferation of seeds that required significant inputs of chemical fertilisers and pesticides.11 Ecuador has operated a system for seed certification since 1978, the year in which the country enacted its first-generation seed law.12 This framework divided seeds into two essential categories: certified seeds and common seeds.13 The law explicitly subjected certified seeds to greater oversight by the Seed Certification Department than common seeds,14 ostensibly leaving space for the continued commercialisation of the seeds of landrace plant varieties within customary farmer-to-farmer networks. However, once implemented, the Seed Law of 1978 effectively required all seeds that were sold in Ecuador to be registered and subjected to quality control standards.15 While this requirement was not routinely enforced against farmers, in the decades following the enactment of the Seed Law of 1978, Ecuadorian activists demanded that the framework be rewritten in a way that would more explicitly recognise and promote campesinos’ customary practices.16

152  Experimenting with an eco-centric approach Advocacy in favour of reforming the Seed Law of 1978 succeeded when in 2009, a “Plurinational and Intercultural Conference for Food Sovereignty” (hereafter the “Food Sovereignty Conference”) was created. This group worked for several years – in collaboration with over 500 local civil society organisations17 – on a proposal for a new law that would amalgamate multiple themes that were considered to be important for the forms of agriculture practised in Ecuador, including agrobiodiversity conservation, promotion of agroecological practices, and seed regulation.18 The proposal that the Food Sovereignty Conference developed was comprised of five key objectives: (1) to conserve and promote agrobiodiversity, farmer seeds, and associated traditional knowledge; (2) to incentivise agroecological practices; (3) to conduct participatory research, training, education, and extension within the framework of the dialogue of knowledges; (4) to regulate the production and certification of industrial seeds, and to guarantee that the Ecuadorian territory will remain free of transgenic plants; and (5) to foment a new “institutionality” and greater social participation.19 In 2012, the Food Sovereignty Conference proposal for a holistic new framework encompassing agrobiodiversity, agroecology, and seed regulation was submitted to the Ecuadorian National Assembly, forming one inspiration for the initial draft of the 2017 Seed Law. The proposal stalled in the legislature for several years, but it was reanimated in 2016. During this period, a pre-legislative consultation about the draft Seed Law was opened, and the Food Sovereignty Conference filed a pronouncement based on comments that were compiled through consultations with nearly 700 organisations and institutions across the country.20 This pronouncement contained seven key points, many of which reiterated the themes that the initial Food Sovereignty Conference proposal had introduced. Specifically, Ecuadorian campesinos, Indigenous and ethnic minority groups, and their supporters requested that the 2017 Seed Law: (1) recognise ancestral and farmer seeds as farmers’ heritage, (2) incentivise and promote organic agriculture and agroecology, (3) promote the use of ancestral and farmer seeds, (4) guarantee the free flow and exchange of such seeds, (5) protect agrobiodiversity and ancestral seeds, (6) comply with the constitutional mandate that establishes Ecuador as a country free of transgenic seeds, and (7) promote research and education within the framework of the dialogue of knowledges.21 These principal themes formed the basis for discussions between legislators, organisations representing campesinos and Indigenous and other Local Peoples, and community members during the pre-legislative consultation process, which included local meetings held in all of Ecuador’s 24 provinces. According to surveys that the National Assembly conducted and published, 87 per cent of participants in the pre-legislative consultations agreed with the substantive components of the draft Seed Law, particularly in relation to the protection of traditional agricultural knowledge, agrobiodiversity, and the regulation of native seeds.22 Prominent legislators who were involved in the making of the new law highlighted the importance of these themes, especially in relation to protecting campesinos’ customary agricultural practices.23

Conventional legal imaginaries  153 Ultimately, the new Law for Agrobiodiversity, Seeds and Promotion of Sustainable Agriculture was enacted in June 2017. The principal objectives of the framework were [T]o protect, revitalise, multiply, and invigorate agrobiodiversity in relation to plant genetic resources for food and agriculture; to ensure the production, free and permanent use of seeds of quality and variety, through the promotion and scientific investigation and the regulation of models for sustainable agriculture; respecting the diverse identities, knowledge and traditions towards the end of guaranteeing the self-sufficiency of healthy, diverse, nutritious and culturally appropriate foods to achieve food sovereignty and contribute to Buen Vivir or Sumak Kawsay.24 This statement of purpose expressly reflected many of the policy priorities that the Food Sovereignty Conference had promoted. One of the most significant features of the new law was that it “guarantees the free use, production, promotion, conservation and exchange of campesinos’ seeds, which comprises native and traditional seeds.”25 In addition, the law established an individual and collective “right to the free production, conservation, commercialisation, exchange and access to all classes of native, traditional, and certified seeds.”26 This right was reinforced in one of several guarantees related to campesino agriculture, which provided that farmers may “conserve on their holdings, utilise, exchange, and commercialise their planting or propagating material.”27 Finally, the law obligated the State to “preserve, produce, regenerate, conserve, revitalise, distribute, promote, and facilitate the use, free exchange, and consumption, in a sustainable manner, [of] agrobiodiversity and native and campesino seeds.”28 These guarantees are significant because they took campesinos’ customary agricultural practices seriously. The 2017 Seed Law recognised the contributions that small-scale farmers have made and continue to make to advance policy goals related to the conservation of national agrobiodiversity and the production of food. The protections that the new regime granted for ancestral seed management strategies thus reinforced the buen vivir agenda of the government, by respecting the lifeworlds of campesinos and Indigenous and ethnic minority communities, and by valuing these peoples’ contributions to contemporary Ecuadorian society. Nevertheless, it is important to recognise that the 2017 Seed Law merged these policy priorities with an otherwise conventional system for seed certification. In doing so, the legislation was designed to satisfy the demands of Indigenous and other Local Peoples and campesino farmers without deviating from the strategy that the Citizens’ Revolution government had propounded to reconfigure the national economy. Therefore, although campesino seeds were protected in the 2017 Seed Law, the framework also supported the use of modern biotechnological methods to realise goals such as the development of “high performance crops,” which was one of the tactics that the Citizens’ Revolution government had advocated for transforming the Ecuadorian economy.29

154  Experimenting with an eco-centric approach In order to differentiate between campesino and industrial forms of agriculture, the 2017 Seed Law created a typology of seeds (Figure 7.1). The 2017 Seed Law drew a distinction between two systems of seed production: non-conventional and conventional. The first of these was conceptualised as a “traditional system practiced by natural or legal persons, collectives, communes, communities, peoples, and nationalities that produce, reproduce, exchange, commercialise, lend, and maintain their own seeds, under multiple modalities,”30 or, in other words, campesino agriculture. Meanwhile, the conventional seed system was predicated on seed certification and subjected to State regulation,31 thus addressing issues and practices associated with industrial production. According to the 2017 Seed Law, the non-conventional seed system would be concerned entirely with campesinos’ seeds (semilla campesina), a term that was divided into two subcategories: native seeds and traditional seeds. The former was defined as [A]ll sexual and asexual plant reproductive material that maintains its capacity of reproduction, original or autochthonous, that has been domesticated, conserved, raised, cared for, utilised and exchanged by producers, communes, communities, peoples and nationalities in accordance with their diverse knowledge and cultures, whose use, conservation, conditioning, exchange, promotion and protection correspond to peoples and collectives with the support of the State.32 Meanwhile, the delimitation of traditional seeds essentially mirrored the definition of native seeds, except that traditional seeds should not be understood as original or autochthonous, but as seeds that “ha[ve] been adapted, conserved, cared for, utilised, cultivated and exchanged by producers, communes, communities, peoples and nationalities.”33 The distinction between native and traditional seeds may be illustrated by comparing crops such as quinoa and rice. Quinoa is endemic to the Andean region,34 "Conventional"

"NonConventional"

’ Seed

Certified Seed Subject to regulation

Customary system of seed management

Traditional Seed Adapted in Ecuador; status unclear

Native Seed Domesticated in Ecuador; heritage of

Figure 7.1 Typology of Seeds in the 2017 Ecuadorian Seed Law.

Conventional legal imaginaries  155 and therefore the reproductive materials of this plant would be classified as native seeds under the new law. In contrast, while rice was not domesticated in Ecuador, it has been cultivated on land that is now located within the country’s borders since at least the end of the eighteenth century.35 Thus, rice planting materials would fall into the category of traditional seeds. The separation of native and traditional seeds into two distinct classes based on the historical origins of a given species may be convenient for the purposes of lawmaking. However, science on plant genetics has demonstrated that the notion of “centres of origin” for domesticated crops is fraught, such that crops did not necessarily originate in centres, nor did agriculture itself necessarily develop in a geographical centre.36 Furthermore, for the purposes of protecting campesino farming practices, the distinction between native and traditional seeds may be counterproductive. This is evidenced by the protections that international instruments such as the Plant Treaty enacted for customary agricultural practices, based on the recognition that Indigenous and other farmers who rely on traditional cultivation methods have made an “enormous contribution” to the conservation and development of all plant genetic resources that humans use for food and agriculture, regardless of where a particular species was domesticated.37 Thus, the rationale for recognising different types of legal protection for native and traditional seeds is difficult to discern. When asked about why lawmakers decided to create two separate categories of campesino seeds, a member of the staff of a legislator who had worked on the project responded frankly that she did not know the reason.38 One key factor that characterised the distinction between native and traditional seeds was that the law recognised the former as “heritage (patrimonio) of [Ecuadorian] peoples and nationalities, [which] is part of the genetic resources for food and agriculture,” and may not be misappropriated.39 In contrast, traditional seeds were not considered to form part of the heritage of Ecuadorian farmers, which also meant that traditional seeds were not explicitly protected from misappropriation. The 2017 Seed Law likewise guaranteed that the National Agrarian Authority would promote the organisation of seed fairs and other spaces for the exchange and commercialisation of native seeds,40 in addition to creating campaigns, mechanisms of stimulus, and incentives so that “peoples and nationalities protect, conserve, use and reproduce native seeds.”41 The law was silent about whether traditional seeds would also be included in these events and programmes. These are curious and potentially detrimental discrepancies, especially given that traditional but non-native crops, including rice, barley, maize, and fava bean, constitute staples of the diets of most Ecuadorians.42 Meanwhile, the ambitious language that characterised the introductory sections of the 2017 Seed Law was not always reflected in the substantive provisions of the legislation. Although one of the goals of the framework was to strengthen the use, conservation, and free exchange of native and traditional seeds,43 these categories of seeds would need to meet phytosanitary requirements in order to be released into the conventional seed market.44 Furthermore, the law permitted transgenic seeds and crops to be imported into the country, provided that these

156  Experimenting with an eco-centric approach plant materials would be used solely for research purposes.45 The potential uses of genetically modified organisms were narrowly drawn in the new law, and the State would be explicitly obligated to “monitor and control the condition of the country as a territory free of transgenic seeds and crops.”46 Nevertheless, permitting transgenic seeds and crops to be imported into Ecuador for research purposes was controversial. Immediately after the enactment of the regime in June 2017, four lawsuits were filed alleging that the new Seed Law violated the 2008 Constitution. The plaintiffs – who were the organisations Ecological Action, Ecuarunari, the Confederation of Indigenous Nationalities of Ecuador, and the Ecuador Free of Transgenics Collective – contended that the law contradicted the constitutional declaration that the country would be “free of transgenic crops and seeds.”47 Subsequently, two additional lawsuits were filed based on the same constitutional claim, revealing the broad misgivings that civil society advocates had about the law.48 Indeed, some groups representing campesinos and Indigenous and other Local Peoples have openly questioned whether the aspiration of the 2017 Seed Law to actualise buen vivir was effectively subordinated to the interests of industrial agriculture.49 Although the simultaneous promotion of campesino agriculture and embrace of biotechnology appeared paradoxical to some Ecuadorians, this approach was wholly consistent with the broader development vision of the Citizens’ Revolution government. Legislators and bureaucrats who held public offices in the Correa administration regularly expressed interest in developing a “bioeconomy” through the marriage of modern biotechnological tools with Ecuadorian native biodiversity.50 As a discursive strategy, the linkage of biotechnology and buen vivir was possible because in contrast to orthodox economic development theories, the Ecuadorian approach would be based on the generation of “bio-knowledge” and communitarian eco-touristic services, to be realised through the dialogue of knowledges that earlier sections of this book described. However, in practice, this model was internally contradictory because while claiming to follow an alternative to development, it reified most elements of the dominant paradigm of linear developmentalism and depended almost exclusively on the products of a rationalist scientific enterprise.51 As of 2019, it was difficult to assess how these incongruities might be resolved in practice, and how the 2017 Seed Law would affect the form of customary agriculture that many Ecuadorian campesino peoples practise. Although the Ministry of Agriculture enacted regulations to implement the regime in August 2019, this framework only dealt with the “conventional” seed system, or, in other words, with certified seeds. The sole part of the regulations that concerned native and traditional seeds was one provision that described the information that the newly created National Seed Information System should include. Specifically, the National Seed Information System must cover, among other topics, protocols for the identification of native seeds and information about production areas and seed exchange fairs for native and traditional seeds.52 Because the new regulatory regime did not stipulate how the governance of native and traditional seeds should unfold, at the time of writing it was not

Conventional legal imaginaries  157 possible to evaluate whether the 2017 Seed Law might effectively recalibrate how campesino and industrial agricultural systems interact in Ecuador. Although the 2017 Seed Law expressly incorporated several of the points enumerated in the proposal for legislation that the Food Sovereignty Conference had advanced, certain conceptual ambiguities manifested in the final version of the law. In addition to the issues raised above, it is notable that the primary purpose of the regime was to institutionalise a system that would essentially conform to the realities of industrial agriculture. This orientation was revealed through the continued emphasis on seed certification and regulation in the 2017 Seed Law, which was again reinforced in the August 2019 regulatory framework. Therefore, like the Ingenios Act, while the revised Ecuadorian system for the governance of seeds announced several reformist aspirations, in many ways it reiterated the essential tenets of the framework it replaced, namely the Seed Law of 1978. Furthermore, despite its stated aspirations, the 2017 Seed Law reflected an interpretation of campesino agricultural practices as historically rather than contemporarily important. This was evidenced by the typology that the law created. The campesino seed system was conceived as “non-conventional,” while the industrial seed system was conferred the default position of “conventional.” Such language may be accurate in North America or Europe where industrial agriculture produces the majority of the food that residents of these regions consume. However, in Ecuador, where the majority of the food eaten within the country is sourced locally from family farmed plots, many of which depend heavily on native and traditional seeds, the characterisation of campesinos’ seed as nonconventional is both ironic and inaccurate. Notwithstanding these limitations, the 2017 Seed Law contained several provisions that could advance policy goals related to the protection and promotion of campesinos’ customary agricultural practices. In addition to guarantees related to the access and use of seeds, the law established a series of individual and collective rights related to agrobiodiversity conservation and food security. These included the right to the free production, commercialisation, and consumption of healthy, nutritious, and diverse foods; the right of communities, peoples, and nationalities to the recognition and valorisation of ancestral and traditional knowledge linked to agrobiodiversity and the production of seeds; and the right to participation in decision making surrounding agrobiodiversity.53 These provisions actualised several of the international obligations that Ecuador had assumed under the global biodiversity treaties, especially the Plant Treaty. Specifically, this regime required members to take measures to promote “farmers’ rights.” As described in Chapter 4, the embodiment of farmers’ rights in the Plant Treaty included the right to the protection of traditional knowledge about plant genetic resources for food and agriculture, and the right to participate in nationallevel decision making in matters related to the conservation and sustainable use of plant genetic resources for food and agriculture.54 Similar protections were inscribed in the 2017 Seed Law, in addition to rights related to the utilisation of native and traditional seeds. Notably, the latter guarantees also formed part of the conception of farmers’ rights that the Plant Treaty had advanced.

158  Experimenting with an eco-centric approach In addition to granting a series of rights to protect campesino agricultural practices, the 2017 Seed Law created a set of duties that the government is now bound to uphold. These obligations include guaranteeing the conservation of agrobiodiversity; preserving, producing, regenerating, conserving, revitalising, distributing, promoting, and facilitating the use and free exchange of native and farmer seeds; and guaranteeing individual and collective rights to the conservation, storage, production, improvement, access, free circulation, commercialisation, and exportation of seeds.55 Finally, the State is required to shield ancestral and traditional knowledge from misappropriation, and to ensure that these ways of knowing are promoted, in parallel with customary agricultural practices and technologies.56 Given the various rights and obligations that the 2017 Seed Law inscribed, the new regime may be understood as a counterpart to the system of intellectual property for plants that the Ingenios Act established. That is, both regimes recapitulated the dominant approaches to the governance of human-plant interactions that conventional intellectual property and seed laws promote, while also deviating from these models in certain ways. For instance, the Ingenios Act and the 2017 Seed Law both aspired to recalibrate relationships between different human constituencies by recognising new protections for campesinos, including Indigenous and ethnic minority communities, when these groups utilise plants to fulfil anthropocentric purposes. Another example of how the new Ecuadorian regimes departed from conventional norms is found in the conceptualisation of campesino seeds in the 2017 Seed Law, which did not follow an individualistic, proprietary logic. In contrast to the plant variety protection laws of countries such as India, the new Ecuadorian seed legislation did not establish a mechanism through which individual farmers or farmer cooperatives might register varieties that they develop. Instead, the 2017 Seed Law envisaged native seeds – although curiously, not traditional seeds – as Ecuadorian campesinos’ heritage, a recognition that would not be compatible with private ownership. Thus, the 2017 Seed Law reimagined the way that legal systems should mediate relationships between different human actors vis-à-vis seeds, which in practice involved enacting new strategies to reinvigorate and safeguard campesino agriculture. The 2017 Seed Law did not envisage the protection of plants for their own sake. However, the framework may be understood as a legal manifestation of the Ecuadorian governmental interpretation of buen vivir, replete with all of the possibilities and contradictions that the inscription of this concept has entailed. While the various law reforms that Ecuador has undertaken to effectuate sumak kawsay/buen vivir have been fraught with incongruities, these efforts demonstrate that it is possible to experiment with conventional norms, while foregrounding rather than obfuscating the reigning political ideology. A similar strategy was revealed in the new Ecuadorian system of traditional knowledge protection, which, like the 2017 Seed Law, aspired to embody an alternative to standard forms of intellectual property.

Conventional legal imaginaries  159

7.2 Traditional knowledge protection as an alternative to intellectual property Over the past several decades, efforts have been undertaken around the world to create legal systems that would formalise protections for the knowledge of Indigenous and other subaltern peoples.57 Many of these initiatives were driven by motivations similar to those that undergirded the formation of the global biodiversity treaties discussed in Chapter 4 of this book. For instance, beginning especially in the 1990s, concerns arose that research aimed at bioprospecting could deteriorate into biopiracy if traditional knowledge related to the uses of certain plants were misappropriated and if proper compensation were not provided to the people from whom the knowledge was received.58 Many of the proposals and models for legal systems that would protect traditional knowledge have rendered this subject matter in explicitly proprietary terms. For instance, scholars and legal experts – few of whom are themselves members of Indigenous or other subaltern communities – have advocated for the utilisation of conventional intellectual property laws such as copyright, trademark, and geographical indications of origin as a “toolbox” for the protection of traditional knowledge.59 While critics have argued that standard intellectual property systems are incompatible with the forms of collective knowledge governance that many Indigenous communities follow,60 the proprietary theory of protection continues to underlie contemporary efforts to establish an international system to safeguard traditional knowledge. At present, the most prominent global initiative in this area is embodied in the work of the “Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore,” a body that is overseen by the World Intellectual Property Organization (WIPO). Since 2000, this group has attempted to create an international legal instrument for the governance of traditional knowledge, but the process has been beset with numerous complications. After 20 years of meetings, the Intergovernmental Committee has still not been able to finalise a draft treaty for traditional knowledge protection. The issues that the formation of a prospective international agreement has faced include the difficulty – or perhaps, the impossibility – of formulating a standardised definition of traditional knowledge, and the lack of real incentives for States to engage in multilateral normative development in this domain.61 Furthermore, the transformation of ancestral forms of knowledge management to fit a fundamentally rationalist international governance model is inherently problematic, even when Indigenous and other Local Peoples are able to contribute to the lawmaking process. This situation is complicated by the fact that budgetary limitations of the “Voluntary Fund” have jeopardised the participation of Indigenous delegates to the Intergovernmental Committee on several occasions.62 In the absence of a binding legal instrument, some regional intergovernmental organisations have created frameworks to regulate the access and utilisation of traditional knowledge under their separate jurisdictions. Examples include the

160  Experimenting with an eco-centric approach Secretariat of the Pacific Community with its Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture 63 and the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore of the African Intellectual Property Organization,64 in addition to national-level laws in some countries.65 Although these regimes do not necessarily situate traditional knowledge in the same doctrinal category as intellectual property, they have typically followed a similarly proprietary rationality. For instance, the Regional Framework of the Secretariat of the Pacific Community conceives of the holders of ancestral knowledge or expressions of culture as “traditional owners,”66 while under the Swakopmund Protocol the “owners of the rights” in traditional knowledge are its “holders.”67 Meanwhile, the type of protection that traditional knowledge laws recognise has assumed at least two forms.68 The first of these is “defensive protection,” the most prominent feature of which is usually the compilation of a Stateadministered database that can be used to defeat applications for conventional forms of intellectual property – especially patents – based on lack of novelty. The second class of laws entails “positive protection,” obtained through systems whose purpose is to prevent the unauthorised use of traditional knowledge, while potentially also promoting the commercial exploitation of this subject matter by the legally recognised owners or knowledge holders. Ecuador is one of the few countries to have experimented with a comprehensive legal framework to govern traditional knowledge at the national level. As we have already seen, the Ingenios Act envisaged ancestral knowledge as the counterpart of intellectual property, with both of these concepts united under the umbrella of intellectual rights.69 This reconfiguration of intellectual property law was motivated by the recognition of collective rights to traditional knowledge in the 2008 Constitution.70 Following the entry into force of the new constitutional framework, it became apparent to lawmakers that the Intellectual Property Law of 1998 would need to be expanded to recognise new forms of protection for Indigenous knowledge systems. This regime had declared that “a sui generis system of collective intellectual rights of the local ethnicities and communities will be established.”71 However, a sui generis framework was never created, and therefore traditional knowledge only entered into the ambit of lawmaking in Ecuador during the drafting of the Ingenios Bill in 2014 and 2015. Although the recapitulation of the standard term “traditional knowledge” in the Ingenios Act may suggest an historical rather than a contemporary appreciation of Indigenous, alternative, or subaltern cosmologies, the Ingenios Act recognised that the Ecuadorian society and economy will rely on ancestral knowledge presently and in the future. This understanding of traditional knowledge as dynamic, vital, and constantly evolving was reinforced by the intentions expressed in the framing language of the Ingenios Act. The Considerations section of the law recalled the 2008 Constitution, which foresees that it shall be the responsibility of the State to facilitate and promote the incorporation of the society of knowledge to achieve the objectives

Conventional legal imaginaries  161 of the development regime; promote the generation and production of knowledge, foment scientific and technological research, and strengthen [potenciar] traditional knowledge, to thus contribute to the realisation of buen vivir.72 The general objectives of the Ingenios system also included “the recovery of ancestral knowledge.”73 This provision implied that certain forms of knowledge have been lost – or at least obfuscated or subjugated – but that such ways of knowing will contribute to the actualisation of the new Ecuadorian development regime. The strategy for an alternative to development – or as critics of the Citizens’ Revolution government have alleged, “alternative development”74 – has, since 2007, been encapsulated in the National Plan for Buen Vivir. The third, and at the time of writing, current iteration of the National Plan (2017–2021) acknowledged the importance of the dialogue of knowledges (described in Chapter 5) to the Ecuadorian society and economy, and reiterated aspirations that had been advanced by the 2008 Constitution and subsequent legal regimes, including the Ingenios Act. The National Plan (2017–2021) echoed the intentions of these prior frameworks, including respecting the cosmologies and ways of knowing of Ecuadorian Indigenous and ethnic communities and nationalities. Thus, of the nine specific objectives that the National Plan advanced, one was to affirm interculturality and plurinationality through a valorisation of diverse peoples’ identities. According to the National Plan, the realisation of this goal should be pursued by promoting the recovery, recognition, and protection of ancestral knowledge, cosmologies, and cultural dynamics.75 Given the aims that were embedded in the Ecuadorian national development strategy, it was logical that the Ingenios Act system for the protection of intellectual rights would include ancestral knowledge within its scope. This is because the Citizens’ Revolution development paradigm conceived of and promoted traditional knowledge in a way that is reminiscent of conventional narratives about economic growth that tend to fetishise intellectual property.76 However, because development within an episteme of buen vivir was supposed to signify something more than merely the accumulation of capital, the Ingenios Act valorised Indigenous cosmologies by granting traditional knowledge doctrinal parity with standard forms of intellectual property. Furthermore, in addition to substantiating a comprehensive form of protection for ancestral knowledge, the Ingenios system enacted robust enforcement mechanisms for misappropriation of this knowledge, indicating that the Act took seriously the lifeworlds of Indigenous and other Local Peoples. The Ingenios Act dissolved the boundaries between Indigenous cosmology and rationalist understandings of human intellectual creations, formulating traditional knowledge protection according to the logic of possession rather than ownership. Nevertheless, the coupling of intellectual property and traditional knowledge within the paradigm of intellectual rights meant that both categories of legal protection would share the same general objectives. These included

162  Experimenting with an eco-centric approach “promoting scientific, technological, artistic, and cultural development, as well as incentivising innovation.”77 Furthermore, the Ingenios Act envisaged that the acquisition and exercise of intellectual rights would guarantee “the effective enjoyment of fundamental rights,” contributing to “an appropriate diffusion of knowledge in benefit of the owners and the society.”78 In relation to ancestral knowledge specifically, the Ingenios Act aimed “to preserve and perpetuate the traditional knowledge of communities, peoples, nationalities and communes, procuring the expansion thereof and protecting it from illegitimate commercial appropriation.”79 The regime defined the scope of traditional knowledge broadly, to include [A]ll knowledge, principally collective, such as practices, methods, experiences, capacities, signs and symbols belonging to peoples, nationalities and communities that form part of their cultural acquis and have been developed, actualised and transmitted from generation to generation. Traditional knowledge is, among others, ancestral and local knowledge, the intangible component associated with genetic resources and traditional cultural expressions.80 The Ingenios Act also enumerated several categories of processes and products that could qualify as embodiments of traditional knowledge, while remaining open to recognising categories of information that were not listed expressly. These groupings included health-related knowledge; agricultural practices; knowledge about the management of biodiversity; knowledge related to ecosystem functioning and conservation for climate change mitigation and adaptation; crafts and artistic creations and rituals; scientific technologies and innovations; music; sports and recreation; and architecture.81 Thus, the Ingenios embodiment of traditional knowledge covered an expansive range of subject matter, which if cast in standard intellectual property terms would fall within the ambit of patents (e.g. scientific technologies and innovations), copyright (e.g. artistic creations), geographical indications (e.g. crafts), or other regimes. As mentioned earlier, the form of protection that the Ingenios Act established would pertain to “legitimate possessors,” not to owners of traditional knowledge. Consistent with the constitutional objective of plurinationality, the protection of traditional knowledge should be effectuated “in accordance with [legitimate possessors’] own customs, institutions and cultural practices, contributing to the strengthening of their traditional internal structures.”82 Thus, the officials involved in the making of the Ingenios Act imagined that basing protection on possession rather than ownership would conform to Indigenous Andean understandings of how information should circulate among individuals and communities.83 Furthermore, the Ingenios Act endeavoured to remedy what lawmakers perceived as the historical misappropriation of traditional knowledge. In both Ecuador and other countries around the world, numerous cases have demonstrated that Indigenous knowledge and practices have been arrogated by non-Indigenous

Conventional legal imaginaries  163 individuals and institutions. This has occurred alongside instances of biopiracy, as described in Chapter 4. For instance, in the past, numerous foreign universities and firms conducted research in Ecuador to identify plants that could have economically valuable medicinal or agronomic properties, and these investigators took samples based on which commercial products were generated. In some cases, Ecuadorian Indigenous peoples had intergenerational knowledge about the use of these plants for analogous purposes, and yet they did not receive any benefits from the economic exploitation of the goods that were developed.84 The biodiversity treaties discussed in Chapter 4 were designed to ensure that this kind of misappropriation would not occur in the future. Meanwhile, the Ingenios Act went further than these international frameworks by explicitly delimiting the relationship between traditional knowledge and the public domain. This demarcation challenged the “romance of the commons” in which the “information resources of the West” were historically propertised, while the “information resources of the rest of the world, such as genetic resources and traditional knowledge,” were left in a global commons.85 Thus, the Ingenios system was expressly designed to subvert what the framers of the law perceived as a legacy of injustice inherent in conventional intellectual property systems. According to the delineation that the Ingenios Act established, traditional knowledge would only be considered to be in the public domain when this knowledge has left the “cultural ambit” of its legitimate possessors, and may now be located in bibliographic resources, databases, or ex-situ collections.86 In the event that ancestral knowledge has passed into the public domain, under the Ingenios system the Ecuadorian government nevertheless would recognise the rights of legitimate possessors to “a just and equitable participation in the benefits” derived from any exploitation of such knowledge.87 These provisions aimed to challenge the standard, imagined dichotomy between public domain and private property, which has frequently characterised debates about intellectual property. The aspirational rhetoric that permeated the sections of the Ingenios Act devoted to traditional knowledge governance was catalysed into substantive provisions that were designed to empower holders of this knowledge in several ways. For instance, the law recognised the right of legitimate possessors to maintain, foster, manage, enrich, protect, control, innovate, and develop ancestral knowledge, in addition to the right to impede or halt the improper access, use, and utilisation of this knowledge by third parties.88 The law also recognised legitimate possessors’ right of free determination over decisions related to their traditional knowledge89 and guaranteed that the same protections would be afforded to legitimate possessors whose ancestral territories extend to land outside of Ecuadorian borders, and who therefore might not be Ecuadorian citizens.90 The collective rights that the Ingenios Act granted in relation to traditional knowledge were recognised as being “imprescriptible, inalienable, and inviolable.” 91 Decision making surrounding uses of protected subject matter was enshrined as a right of free determination, to be realised according to legitimate possessors’ “own forms of conviviality, social organisation, institutions, and the

164  Experimenting with an eco-centric approach generation and exercise of authority.” 92 In summation, the Ingenios Act aspired to provide a form of positive protection for traditional knowledge, the parameters of which should be consonant with local Indigenous customary law. However, when attempting to implement the Ingenios regime, some officials at the National Service for Intellectual Rights believed that the form of protection that the law established still needed to be strengthened. For instance, administrators thought that the Ingenios Act should be modified by recognising stricter sanctions for violations of the rights of traditional knowledge holders.93 In fact, in October 2018, the motivation to bolster the Ingenios system was so strong that one official indicated that he believed that the Act could be reformed before the end of that year.94 Although by late 2019 this had not occurred, activities related to the potential refinement of the Ingenios Act continued to unfold. For instance, in November and December 2019, the National Service for Intellectual Rights convened a series of workshops to gather feedback from experts and interested parties about proposed modifications to the Ingenios Act.95 Another reason for why the Ecuadorian system of traditional knowledge protection continued to evolve three years after the entry into force of the Ingenios Act was that as of late 2019, the Technical Regulations to implement the law had not yet been finalised. The first draft of the proposed regulatory framework was published online in July 2018.96 Like the sections of the Technical Regulations concerning plant breeders’ rights that were described in Chapter 6, the provisions related to traditional knowledge protection were subjected to public scrutiny through an online platform and during in-person sensitisation events that were held in late 2018. This process continued to unfold one year later, and a comprehensive draft of the Technical Regulations was emitted in November 2019. The November 2019 version of the Ingenios Technical Regulations specified that parties who wish to access, use, or utilise Ecuadorian traditional knowledge would need to conduct “due diligence” to locate the legitimate possessors of this knowledge.97 This process should involve the steps of enquiry and verification, to ensure that the correct persons are identified. Upon being contacted by a party seeking access to traditional knowledge, legitimate possessors would be empowered to (1) authorise, stop, or deny access, use, or utilisation; (2) accept or reject the due diligence conducted by the party interested in obtaining the knowledge; (3) define, according to their customs, traditions, forms of living, and social organisation, mechanisms of participation and representation, and methods for decision making; (4) secure co-management in the case of shared traditional knowledge; and (5) negotiate the sharing of benefits with the party interested in obtaining the knowledge.98 The proposed Technical Regulations also enumerated procedures that prospective users would need to follow to obtain prior informed consent from legitimate possessors, in addition to protocols for the distribution of monetary and non-monetary benefits and the execution of contracts with legitimate possessors for the utilisation of traditional knowledge. The collective rights that the Ingenios Act granted to holders of traditional knowledge were designed to be conferred automatically. That is, the law did not

Conventional legal imaginaries  165 require that ancestral knowledge be formally registered to trigger the mechanisms of protection and enforcement, “given that this power resides in the legitimacy of the communitarian sphere.” 99 However, the Ingenios Act did create an optional protocol for the registration of traditional knowledge, comprised of the parallel systems of a State-run deposit system and database on the one hand and community registries to be administered locally according to customary law on the other hand.100 The Technical Regulations further stipulated that these community registries should be managed based on locally developed procedures to record ancestral knowledge, according to cultural norms and in the native language of the community. Although as of 2019, the Technical Regulations to the Ingenios Act had not yet been finalised, the National Service for Intellectual Rights had begun to inscribe examples of Ecuadorian traditional knowledge in its centralised institutional registry. According to one official, by late 2018, approximately 120 registrations had already been made.101 Furthermore, the National Service for Intellectual Rights was continuing to organise in-situ sensitisation events to explain the purpose of the traditional knowledge protection system to various communities in the Ecuadorian coast, Sierra, and Amazon regions.102 Notably, the process of cataloguing ancestral knowledge in the centralised registry has unfolded in a manner that has involved direct collaboration between governmental bureaucrats and particular Indigenous communities. Thus, administrators from the National Service for Intellectual Rights have travelled to local villages, where drafts of the traditional knowledge registration form were co-constructed with community members, especially those from the Tsáchila nationality.103 According to one staff member at the National Service for Intellectual Rights, the participatory process through which the registration form was designed required officials to engage in “day to day learning, which is quite dynamic.”104 The collaborative materialisation of the Ecuadorian traditional knowledge registration system has humanised Indigenous communities to governmental bureaucrats in a way that has inspired passion on the part of administrators in the National Service for Intellectual Rights. For instance, one official confided that “I am always attentive, careful [to ensure] that this knowledge is not lost. Sometimes I can’t sleep. I wake up and ask myself, what would happen if this information disappeared?”105 Although this sentiment in some ways suggested a false conception of Indigenous knowledge as static and archaic in nature, and therefore in need of saving, it is nevertheless remarkable that administrators in Ecuador conceive of their roles as being stewards of ancestral knowledge. While the system of traditional knowledge protection that the Ingenios Act instantiated was conceptually consistent with the broader regulatory strategies that the Citizens’ Revolution government advanced, some of the provisions of the law were in tension with one another. Most prominently, although the Ingenios Act ostensibly aspired to empower communities to manage local knowledge on their own terms, in order to be effective, the Act required traditional knowledge to be formally inscribed and administered by the State. Thus, the regime

166  Experimenting with an eco-centric approach situated the National Service for Intellectual Rights as the central archivist, intermediary, and enforcer of Ecuadorian ancestral knowledge. The Ingenios Act did not expressly obligate legitimate possessors to register their knowledge; the system was designed to be based on “voluntary deposits.” Nevertheless, the hope was that the greatest amount of information possible would be submitted to the centralised registry. Officials have spent countless hours on-site, working with communities to explain why they believe that traditional knowledge deposits are important. One administrator who has been involved in such initiatives since 2009 – long before the Ingenios Act was conceived – described the experience as “a constant battle for the community to understand why this is important. That they can trust me.”106 There are many reasons for why Indigenous communities might not trust representatives of a State that historically has been at least complicit in, if not an active proponent of the marginalisation of peoples who were not of European descent. Nevertheless, in 2019 it appeared that confidence in the system of traditional knowledge protection was growing. One official described the process of raising awareness about the Ingenios Act as contagious, such that after the National Service for Intellectual Rights travelled to one community, others “write to us or call us or come to our offices and tell us ‘we want this too.’ And this creates a domino effect, and we keep working and working.”107 However, even if this momentum were to manifest in the establishment of nationwide community-based registries, traditional knowledge would need to be made legible in new ways to the central Ecuadorian State apparatus. For instance, according to the system proposed in the draft Technical Regulations, local custodians would be obligated to submit an annual report to the National Service for Intellectual Rights that would detail the number of registrations made and the security measures employed to protect the knowledge that has been deposited.108 Furthermore, the National Service for Intellectual Rights would constitute the entity responsible for undertaking “permanent monitoring of the collective rights of legitimate possessors,” for the stated purpose of preventing improper access, use, or utilisation of ancestral knowledge.109 Another potential issue with the Ingenios system of traditional knowledge protection is that new ways of transforming “culturalised communities” into subjects of governance could entail unintended consequences, especially where products derived from Indigenous knowledge may be monetised in neoliberal capitalist economies. For instance, Coombe (2016) has argued that, concomitant with the extension of a rights-based framework to protect traditional knowledge, Indigenous communities have been configured in increasingly politicised economic terms as holders of collective property that they are encouraged to culturalise.110 This has occurred in Ecuador in part through the institutionalisation of protections for ancestral knowledge in the Ingenios Act. Even if not expressly conceived as intellectual property, the doctrinal linkage of traditional knowledge rights with the copyright, patent, and trademark regimes could have the effect of translating Indigenous and other subaltern peoples’ ways of knowing the world into the rationality of neoliberal capitalism.

Conventional legal imaginaries  167 In this way, the system of ancestral knowledge governance that the Ingenios Act established could operate as a new governmental technology through which Indigenous and other subaltern groups would be encouraged to represent themselves as “collective subjects bearing distinctive cultures and safeguarding valuable diversity.”111 Under such a regime, obtaining recognition as a legitimate possessor of traditional knowledge might extend novel opportunities to historically marginalised peoples – for instance through greater political visibility, participation in decision making, or access to new economic opportunities. However, doing so could also serve to make these groups more legible for the purposes of governmentality, while also reifying “social imaginaries” that presume the existence of unified communities that would receive uniform benefits from the exploitation of their cultural goods.112 Evidence for this possibility may be found in the refinements that officials from the National Service for Intellectual Rights have made to the traditional knowledge registration form to obtain information, including geographic coordinates and the age and gender of the legitimate possessor lodging the form. As one administrator explained, these details were viewed as important to ensure that the State can quantify the ancestral knowledge that exists within the national territory so that administrators may visualise trends related to the deposits made.113 An additional concern arises from the idea that the protection of traditional knowledge would function as a means to actualise the contemporary Ecuadorian strategy for national development. Critics of the Citizens’ Revolution economic governance model have noted that the notion of “sustainable development is an oxymoron.”114 In contrast, as Kothari et al. (2014) note, “in Indigenous knowledge, there is nothing analogous to the concept of development…. There is no concept of a linear process of life to establish a before and after state, namely underdevelopment and development.”115 Correspondingly, the recognition of ancestral knowledge in a regime designed primarily for the protection of intellectual property could precipitate effects that would further entrench the neoliberal capitalist political and economic structures that the Ingenios Act purported to disrupt. In practice, it is conceivable that the Ingenios Act might enable people recognised as legitimate possessors of traditional knowledge to prevent certain forms of exploitation. However, the law could also operate to incentivise the holders of ancestral knowledge to distil and monetise manifestations of their cultures, and in so doing reify a particular version of Indigeneity or ethnicity that could result in a dilution of identity in favour of saleability. Furthermore, although the Ingenios Act explicitly recognised that traditional knowledge is not static, the establishment of a system through which this subject matter may be protected requires that ancestral knowledge be rendered legible in a particular way so that it can be administered by centralised systems of governance. Thus, traditional knowledge must be fixed and translated into terms that conform to a possessive – if not necessarily proprietary – logic. Notwithstanding these criticisms, the system of ancestral knowledge protection that the Ingenios Act established may represent an interesting example for

168  Experimenting with an eco-centric approach countries to consider when they explore alternatives to conventional forms of intellectual property for plants. This is because the Ingenios system took seriously the knowledge of Indigenous and other subaltern peoples, which is evidenced in the recognition of customary forms of local governance for community registries and the parity that the law created between traditional knowledge and standard intellectual property categories. Although the inscription of ancestral knowledge in the Ingenios Act could promote the consolidation of Ecuadorian Indigenous and other Local Peoples’ identities according to archetypes that would be legible to dominant systems of governmental regulation and economic commodification, the recognition of robust enforcement provisions reveals that the framers of the law intended to empower these communities. It remains to be seen how the tensions between Statist centralisation, capitalist culturalisation, and local forms of self-governance will be navigated in practice.

7.3 Food sovereignty as an alternative to intellectual property A final example of how Ecuadorian lawmakers have experimented with strategies to govern human-plant interactions that deviated from conventional intellectual property norms involved institutionalising the concept of food sovereignty. This notion has been substantiated as “the right of peoples to healthy and culturally appropriate food produced through ecologically sound and sustainable methods, and their right to define their own food and agricultural systems.”116 An alternative definition proposed that food sovereignty should be understood as “the right of nations and peoples to control their own food systems, including their own markets, production modes, food cultures and environments…as a critical alternative to the dominant neoliberal model for agriculture and trade.”117 As the latter characterisation suggests, food sovereignty and intellectual property are often conceived as mutually exclusive concepts. In this way, a binary is envisaged, in which the “peasant mode of production” (embodied in small-scale, customary agriculture) is diametrically opposed to “global capitalist agriculture” (typified by large-scale, industrial farming).118 Although this dichotomisation may operate as a useful means to catalyse social activism or to motivate political change, the divide between food sovereignty and intellectual property need not be so stark. In other words, it would be possible to reconfigure the conceptual binary by inquiring how food sovereignty might inspire alternative ways of thinking about the relationship between intellectual property and plants.119 In countries that have recognised food sovereignty in national legal systems, the notion has already begun to shape intellectual property laws. For instance, in Nepal, a country that embedded a right to food sovereignty in its 2015 Constitution, civil society organisations representing peasant farmers have deployed food sovereignty discourse as a strategy to advocate for the expansion of intellectual property norms in a way that would transcend the standard, proprietary logic. These groups argued that their

Conventional legal imaginaries  169 goal could be realised if the law were to grant control – but not necessarily ownership – over plants to a broader set of human agents.120 In Ecuador, food sovereignty was not recognised as an express right in the 2008 Constitution, but as “a strategic objective and an obligation of the State to guarantee that persons, communities, peoples and nationalities permanently achieve self-sufficiency surrounding healthy and culturally appropriate foods.”121 This delineation indicates that the constitutional embodiment of food sovereignty in Ecuador was intended to promote the independence or self-reliance of campesino farming communities. The aim of advancing peoples’ autonomy over local systems of food production was reinforced in the 2008 Constitution through its recognition of “the right to the secure and permanent access to healthy, sufficient and nutritious food; preferentially produced at the local level and in correspondence with [peoples’] diverse identities and cultural traditions.”122 Furthermore, the 2008 Constitution obligated the State to foster the autonomy of communities in food provisioning, by promoting campesino agriculture, avoiding the dependence on food imports, supporting the preservation and recovery of national agrobiodiversity and ancestral knowledge, and ensuring the free use, saving, and exchange of seeds.123 As with other parts of the constitutional framework that were described earlier in this book, certain tensions characterised the approach to food sovereignty that the 2008 Constitution promulgated. For instance, while the regime aimed to strengthen traditional knowledge and to bolster ecological farming techniques, it simultaneously sought to ensure “the development of appropriate scientific research and technological innovation to guarantee food sovereignty” and to regulate “the use and development of biotechnology.”124 Although these aspirations might appear contradictory, they are consistent with other parts of the new Ecuadorian constitutional model, and with the vision of Citizens’ Revolution officials for a version of buen vivir governance that would be based on a dialogue of knowledges – what René Ramírez described as “biosocialism.”125 Shortly after the enactment of the new constitutional regime, in May 2009 the Ecuadorian National Assembly passed an Organic Law for the Food Sovereignty Regime (hereafter the “2009 Food Sovereignty Law”). This project was motivated by the recognition that food sovereignty has a “multidimensional character” and therefore it was necessary to establish an “articulating law” that would constitute a first step towards the making of future legislation related to the national food system.126 The overarching purpose of the 2009 Food Sovereignty Law was to establish a legal scaffolding to bolster food production, circulation, and consumption based on a preference for campesino practices, protections for agrobiodiversity, and respect for ancestral knowledge and practices.127 In accordance with its self-characterisation as “articulating” legislation, the contents of the 2009 Food Sovereignty Law were diverse, covering topics including access to water and land; research, technical assistance, and the dialogue of knowledges; access to capital and financial incentives; health and nutrition; and citizen participation.

170  Experimenting with an eco-centric approach While a substantial portion of the 2009 Food Sovereignty Law was devoted to agricultural inputs and outputs other than plants, the framework also advanced certain ideas that could help us to reimagine how the law might treat vegetal life. Although the regime was primarily concerned with anthropocentric uses of plants – it was, after all, a system designed to regulate the conditions under which humans eat – the 2009 Food Sovereignty Law also hinted at the intention to benefit vegetal life for its own sake. For instance, in the section on agrobiodiversity protection, the law mandated that subsequent frameworks be developed to create the legal and institutional means necessary to assure agrobiodiversity, by promoting crop “associativity” and “sustaining” diverse plant species.128 In this context, associativity referred to the adoption of agroecological farming strategies, which since the 1980s had been promoted in Ecuador by advocates for an alternative to industrial modes of production.129 The preference for agroecology was further evidenced in the enumeration of State objectives in the 2009 Food Sovereignty Law, which was included to incentivise the consumption of healthy and nutritious foods of agroecological and organic origin, avoiding to the extent possible the expansion of crop monocultures.130 The promotion of agroecological methods in the 2009 Food Sovereignty Law provides a glimpse into how legal systems could fashion alternatives to the dominant, instrumental approach to the governance of vegetal life. This is because the concept of agroecology takes for granted the idea that plants participate in a variety of activities within ecosystems, including engaging in relationships with microorganisms to mediate the constitution of the rhizosphere and regulating local microclimates and hydrological processes.131 In other words, assuming an agroecological perspective would require looking beyond the use of plants as food, fibre, fuel, or income in human economies, instead enabling vegetal life to flourish both for its own sake and for the role that it plays in the biosphere as a whole. Like the Ingenios Act and the 2017 Seed Law, the 2009 Food Sovereignty Law primarily focussed on regulating human uses of plants. In this way, the recently established Ecuadorian regimes largely do not deviate from the instrumental approach that legal systems historically have followed when ordering human-plant interactions. However, the kind of experimentation that these legislative initiatives undertook provides a foundation based on which we might rethink how the law could treat vegetal beings. By implanting concepts such as food sovereignty and agroecology into legislation as goals that human societies and economies should strive to achieve, the Ecuadorian approach demonstrates that alternative legal imaginaries are possible, though not always easy to achieve.

Notes 1 For instance, many kinds of animals and plants cultivate symbiotic relationships through seeds. Specifically, plant seeds may provide an important food source for animals, and likewise, animals may provide an important means of seed dispersal for plants. Fleming, T. H. & Kress, W. J. (2013). The Ornaments of Life: Coevolution and Conservation in the Tropics. Chicago, IL: University of Chicago Press.

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8

Lessons from the Ecuadorian experiment with an ecological turn in lawmaking

Recognising the rights of nature implies more than the mere change in legal interpretation of human-nature relationships…it entails a broader conception of reality as well as a new way of approaching it.1 Francisco Vergara Ortiz, Secretary of the Ecuadorian Constitutional Constituent Assembly

The previous three chapters of this book have recounted the story of recent lawmaking initiatives in Ecuador, focussing on instances in which legal systems were reformed in a way that might reconfigure interactions between human and vegetal life forms. While the investigation has centred on the formation of a new Ecuadorian framework of intellectual property for plants, other types of laws were also scrutinised. These included a national Constitution that was remade in 2008, and subsequently enacted regimes that were designed to govern agrobiodiversity, seeds, sustainable agriculture, traditional knowledge, and food sovereignty. The findings of the doctrinal analysis and socio-legal research that were performed to substantiate the Ecuadorian story have demonstrated that the various law reform efforts were driven by ambitious aspirations. However, the study also revealed that the new frameworks largely did not deviate from conventional legal models. One of the most intractable qualities of standard approaches to the regulation of human-plant relationships is the tendency to follow an instrumental way of thinking. That is, to the extent that vegetal life has constituted a matter of concern for legal systems, laws generally have focussed narrowly on prescribing how plants may be used to fulfil anthropocentric purposes. In some ways, the new Ecuadorian legislative and regulatory frameworks might have effectively reset how the law mediates the utilisation of plants by different groups of people – for instance, by recognising that farmers can act as plant breeders or by instituting protections for campesino agricultural knowledge and practices. However, these regimes largely stopped short of affirming that vegetal life should be protected for its own sake, independent of the utility that plants may have for human lifeworlds. There are many reasons that might explain why the Ecuadorian experiments in lawmaking have remained anthropocentric, despite the eco-centrism that the 2008 Constitution advanced in its recognition of rights for Pachamama. As Chapters 3 and 4 demonstrated, Ecuador is obligated to comply with numerous

Lessons from the Ecuadorian experiment  177 international accords that tangibly limited the extent to which policy frameworks, including laws governing intellectual property for plants and the protection of agrobiodiversity, could be reimagined at the national level. Furthermore, as described in Chapter 5, the form of buen vivir socialism that the Citizens’ Revolution government aspired to actualise was based on an alternative conception of the relationship between human beings and nature. However, in practice, social and economic development projects – which often implicitly or explicitly recapitulated logics of linear progress and economic growth – generally took precedence over implementing protections for non-human life forms. Nevertheless, while the new Ecuadorian legal regimes did not always deviate from conventional approaches to the governance of human-plant relationships, the experience of the country with an ecological turn in lawmaking still could provide inspiration for future efforts to take vegetal life seriously in law. While the legislative and regulatory frameworks that Chapters 5–7 discussed are significant, the most convincing reason for why Ecuador represents an important precedent lies in the inscription of the rights of nature in the 2008 Constitution. This is because the recognition of Pachamama as a subject of rights has opened new spaces for debate about relationships between human and non-human beings in diverse legal fora. Although the protections associated with the rights of Pachamama were defined in a reasonably concrete manner in the new Ecuadorian constitutional framework, there has been substantial disagreement over how to apply this concept in practice, and about the effect that these guarantees should have on different categories of human rights. Some of these debates shaped the legislative processes that resulted in the various regimes that were analysed in foregoing chapters. Furthermore, arguments over the implementation of protections for Pachamama have manifested in litigation on several occasions throughout the past decade. Thus, the following two sections document how Ecuadorian judges have come to understand the rights of nature, focussing on one case that is particularly relevant to the treatment of plants in law.

8.1 Pachamama goes to court: adjudicating the rights of nature As Chapter 1 of this book described, the conception of the rights of nature in the 2008 Constitution of Ecuador was comprised of two essential elements. These were the right to be respected holistically, and the right to restoration. These guarantees equated nature with the Andean Indigenous notion of Pachamama, transformed from an object of appropriation to a subject of rights. Furthermore, to actualise the recognition of legal standing for nature, the 2008 Constitution empowered all individual and collective human actors in Ecuador to call upon State authorities to enforce the rights of Pachamama in the national court system. As of late 2019, this had already occurred on numerous occasions, such that the Ecuadorian judiciary had resolved 30 cases that were based on rights of nature causes of action.

178  Experimenting with an eco-centric approach Notwithstanding this accumulation of precedent, judicial interpretations of the rights of nature as a legal concept have been inconsistent in Ecuador. This has likely resulted from the fact that in addition to the protections that the 2008 Constitution extended to Pachamama, the new framework also advanced other objectives that potentially could contradict the rights of nature. Most importantly, the 2008 Constitution classified “natural resources,” including biodiversity and the national genetic heritage, as “inalienable property of the State, immune from seizure and not subject to any statute of limitations.”2 In practice, this provision has allowed the Citizens’ Revolution government to invoke the rights of nature as a “pretext” to curb local initiatives that could obstruct the national development agenda.3 As previous chapters have described, while the Citizens’ Revolution governance model professed to inaugurate an “alternative to development,” it has continued to rely on the extraction and exportation of natural resources – especially fossil fuels – to sustain the Ecuadorian economy. In the context of contestation over the meaning and scope of the rights of nature, it is unsurprising that the jurisprudence in this area has developed unevenly. One reason for the lack of regularity is that several types of legal “tools” have been used to apply the rights of nature as a legal concept in Ecuador. These include lawsuits for protective action to uphold the guarantees that the 2008 Constitution embodied, which have requested that damaged ecosystems be restored or that preventive actions be taken to avoid possible future harms.4 A second legal tool is derived from criminal actions based on the new “crimes against the environment, nature, or Pachamama” that the 2014 reform to the Ecuadorian criminal Code introduced, which seek to punish violators of the rights of nature.5 Finally, government agencies, including the Ministry of the Environment, have initiated administrative actions to enforce the rights of nature and to justify punitive action and the restoration of damaged ecosystems.6 An examination of the utilisation of these various legal tools that Kauffman and Martin (2016) conducted revealed that at least four “pathways” have been followed to substantiate the meaning of the rights of nature in Ecuadorian jurisprudence. These included (1) “norm driven” pressure from civil society actors, including Indigenous groups and environmental organisations; (2) instrumental government action to enforce the 2008 Constitution and the 2014 criminal Code; (3) bureaucratic institutionalisation by the Ministry of the Environment to justify routine procedures derived from administrative regulations; and (4) sua sponte invocation of the rights of nature by judges.7 Of these, the first pathway was the least successful at the time of the Kauffman and Martin (2016) analysis, suggesting that the politicised nature of the rights of nature concept could have hampered the ability of civil society actors to actualise their environmental protection agendas. An additional obstacle was that judges lacked knowledge about the rights of nature, and about how to apply the notion to resolve legal disputes.8 Nevertheless, lawsuits based on the rights of Pachamama continue to be filed in Ecuadorian courts. As of late 2019, of the 30 cases that had been adjudicated, 23 were resolved in favour of the rights of nature, indicating a success rate of over 75 per cent. Thirteen of these cases were protective actions derived from

Lessons from the Ecuadorian experiment  179 the provisions of the 2008 Constitution, while eight sought injunctions to prevent activities that the plaintiffs believed could violate the rights of nature. An additional five cases were penal actions based on alleged violations, while two lawsuits asked the court to declare a law to be unconstitutional, and one claim arose out of non-compliance with a prior judgement in favour of the rights of nature. Of the 30 cases, two-thirds (20) were filed by civil society actors, and one-third (10) were lodged by State authorities. All of the decisions in which rights of Pachamama arguments were not efficacious (7) were filed by private plaintiffs, indicating a 65 per cent success rate. Meanwhile, actions brought by public agencies had a success rate of 100 per cent (see Appendix A, Table A.7). The subject matter that the Ecuadorian rights of nature litigation has covered is diverse. The first successful case was a lawsuit brought on behalf of the Vilcabamba River by the owners of a property adjacent to the waterway. The claim for protection and restoration alleged that the provincial government of Loja, without conducting an environmental impact assessment, had dumped rocks, sand, gravel, and other debris from the excavation of a new road into the river.9 The plaintiffs claimed that the provincial authorities had violated the rights of nature because upon the arrival of the rainy season, the detritus that the Loja government had discarded into the Vilcamba River caused its course to widen, damaging land on its banks. The court agreed and ordered the provincial government of Loja to cease dumping materials into the river, to restore its natural course, and to remove all debris that had been discarded in the water.10 The Vilcabamba River decision was issued in March 2011, and that same year other Ecuadorian courts considered different causes of action based on alleged violations of the rights of nature. In one case, the Ministry of the Interior successfully argued for an injunction to prevent unauthorised mining in the Esmeraldas Province. The judge reasoned that the injunction was necessary to protect the rights of nature and Ecuadorian citizens’ human rights, and therefore he empowered the Ecuadorian military and national police to prevent unpermitted mining in the San Lorenzo and Eloy Alfaro cantons by seizing and destroying all equipment associated with the activities.11 The Correa administration took advantage of the verdict by issuing an executive decree that declared a state of emergency in the San Lorenzo and Eloy Alfaro cantons. One day later, nearly 600 soldiers confiscated and demolished hundreds of pieces of heavy mining equipment, including implements that had been rented from third parties.12 Some scholars have criticised the militarised enforcement of the Esmeraldas judgement, arguing that the approach of the Citizens’ Revolution government represented an “exploitation of the rights of nature” doctrine.13 However, others have suggested that the precedent that the illicit mining case set could ultimately strengthen rights of nature jurisprudence by sanctioning the destruction of private property to defend the interests of Pachamama.14 In a similar controversy that was litigated in the same year as the Esmeraldas mining case, the Ministry of the Environment filed an action for protection based on the constitutional rights of nature provisions to impede unauthorised

180  Experimenting with an eco-centric approach shrimp farming in coastal mangrove forests. After losing at the provincial level, the government appealed to the Constitutional Court and won. In presenting his case, the owner of the defendant shrimp farming company alleged that the Ministry had violated his property rights and his right to work by denying him access to the Cayapas Mataje Ecological Reserve.15 On appeal, the Constitutional Court disagreed, reasoning that the lower court had failed to properly take into account the rights of nature when balancing these guarantees with the other categories of rights that the 2008 Constitution had recognised. Read together, the Esmeraldas mining and the Cayapas Mataje shrimp farming cases are significant, because they demonstrate that Ecuadorian courts have interpreted the rights of nature to outweigh anthropocentric rights in certain instances. This conception was reinforced in the 2014 reform to the criminal Code, which legalised the destruction of private property in certain circumstances, where crimes against Pachamama have occurred.16 Other cases that have been adjudicated during the past decade have demonstrated the power of the rights of nature as a legal concept in Ecuador. Courts have invoked the constitutional protections for Pachamama to restrain numerous kinds of human actions that could negatively affect Ecuadorian ecosystems. Judicial decisions have determined that nature’s rights to be respected and restored holistically were violated in disputes over the impacts of industrial pig farming,17 and the allowance of mining and oil drilling without having conducted prior consultations with local communities18 or without having obtained the requisite permits.19 Furthermore, courts have issued injunctions to halt initiatives that were expected to infringe the rights of nature, including the construction of a road without an environmental permit, 20 the proposed sale of land in a protected forest,21 an earthworks project in which trees were indiscriminately cut and drinking water was contaminated, 22 and the construction of “artisanal” petroleum pools.23 The rights of nature have also provided a legal foundation for the punishment of certain criminal activities, such as illicit shark fishing, 24 the killing of a jaguar, which is a threatened species,25 and the illegal trafficking of sea cucumbers26 and the hunting of condors,27 both of which are endangered species. These cases demonstrate that civil society plaintiffs, private sector and governmental lawyers, and judges themselves have effectively invoked the rights of nature to reconfigure the ways in which human beings may relate to Ecuadorian biomes through their activities. In the litigation that has unfolded to date, the scope of “nature” in rights of nature jurisprudence has included individual species of animals, specifically delimited geographical features – for instance, a river – and whole ecosystems. Furthermore, Indigenous and other subaltern communities have factored into judicial reasoning such that judges have sought to prevent environmental activities, including industrial pig farming and mining, from negatively affecting local human populations. Although to a certain extent, courts have considered potential damages to plants when adjudicating the rights of nature – for instance, where forests have been cleared – most of the Ecuadorian cases have focussed on animals or on non-living elements of ecosystems. However, a verdict issued in early 2019

Lessons from the Ecuadorian experiment  181 deviated from this trend. As the following section describes, this recent case synthesised many of the issues that this book has discussed, which are germane to the inscription of vegetal life in legal systems. These include the regulation of plants as intellectual property, the conservation of agrobiodiversity, the protection of customary agricultural knowledge and practices, and the realisation of food sovereignty. All of these themes were implicated in the case Federation of Agricultural Centres and Campesino Organisations of the Coast vs Ministry of Agriculture, which involved the cultivation of a genetically modified soybean variety.

8.2 What the rights of nature jurisprudence means for plants Following the recognition of legal rights for Pachamama in the 2008 Constitution, the majority of actions that were litigated in Ecuador based on rights of nature claims endeavoured to limit human activities related to the exploitation of uncultivated ecosystems. As the previous section showed, several lawsuits were filed to remediate harms caused by mining, petroleum extraction, fishing, and hunting. In contrast, until recently the only case that had considered an alleged injury to Pachamama resulting from agriculture dealt with industrial pig farming, which was found to have affected the health and well-being of an Indigenous community from the Tsáchila nationality, in addition to contaminating the local water, air, and soil.28 However, the rights of nature jurisprudence related to farming and food production expanded in January 2019, when a court in the Quevedo canton issued a verdict in a case that alleged that the cultivation of transgenic soybeans violated the Ecuadorian constitutional conception of the rights of nature. The case was filed in December 2018 by two civil society organisations, namely the Federation of Agricultural Centres and Campesino Organisations of the Coast (“FECAOL”)29 and the Cantonal Agricultural Centre of Quevedo against the Ministry of Agriculture, the Ecuadorian Agency for Agricultural Quality Assurance (“AGROCALIDAD”), and the Ecuadorian Attorney General. The Ecuadorian Ombudsman and the non-governmental organisation Ecological Action (Acción Ecológica) provided legal and technical support for the case. The central claim of the lawsuit was that since at least 2015, transgenic soybeans were being grown in various parishes and cantons of the Los Ríos province. This allegation gave rise to several causes of action derived from the 2008 Constitution, including the violation of the rights of nature, and of the constitutional declaration that Ecuador is a country “free of transgenic crops and seeds.”30 The roots of the controversy can be traced to 2011, when FECAOL and the Cantonal Agricultural Centre of Quevedo began to conduct participatory monitoring of soybean, corn, alfalfa, and canola crops, suspecting that genetically modified varieties might have already been cultivated in different parts of Ecuador.31 Four years later, the monitoring activities uncovered transgenic soybeans

182  Experimenting with an eco-centric approach in the Los Ríos province, which is located in the humid, tropical coastal lowlands of the country. The methodology utilised for detection relied on the participation of farmers, who took samples from their own fields, which were then subjected to a laboratory test using the QuickStixTM kit for the detection of Roundup Ready® plant tissue.32 The results of the analysis revealed that 18 per cent of the samples taken tested positive for the presence of the transgenic protein CP4 EPSPS.33 An additional 51 per cent of the sample was categorised as “in doubt,” which possibly could have been explained by a shortcoming of the methodology. That is, some samples were taken from plants that had already advanced to a stage of maturity in which it was unlikely that the CP4 EPSPS protein would be sufficiently concentrated in the leaves to be detectable. After the initial positive results were found in 2015, FECAOL filed a lawsuit in the trial court of Guayaquil against the Ministry of the Environment, but the judge rejected the claim. Undeterred, FECAOL and the Cantonal Agricultural Centre of Quevedo undertook a second participatory monitoring study, which was conducted in July 2018, again in the Los Ríos province. For the analysis, 107 samples were taken from farms of sizes greater than 20 hectares, which were located in 16 different parishes of Los Ríos.34 The results demonstrated that more than 77 per cent (83 samples) tested positive for the transgenic CP4 EPSPS protein. These findings suggested that the cultivation of genetically modified crops was expanding at a rapid rate in Ecuador, which prompted FECAOL and the Cantonal Agricultural Centre of Quevedo to file a second protective action in the trial court of Quevedo in December 2018. The case proceeded quickly, and the final judgement of the trial court was issued on 18 January 2019. In his decision, Judge Cesar Elias Paucar granted the protective action that the plaintiffs had requested, and declared that the cultivation of transgenic soybeans violated the constitutional right to live in a healthy and ecologically balanced environment, the guarantee that Ecuador is a country free from transgenic crops and seeds, and the rights of nature.35 The reasoning that Judge Paucar employed amalgamated several of the concepts that have been discussed throughout this book, including sumak kawsay/buen vivir, the rights of nature, intellectual property for plants, agrobiodiversity conservation, the protection of traditional knowledge, and food sovereignty. For instance, the opinion characterised one of the problems with the cultivation of genetically modified plant varieties as an issue of control over the means of food production. Thus, if we consider that food sovereignty is the capacity that a people has to produce its own food and to maintain control over the productive process, we can say that transgenic seeds threaten food sovereignty because the producer loses control over the first link of the productive chain, which is the seed.36 Judge Paucar associated the decline of local control over food production with the potential to reduce agrobiodiversity, declaring, “transgenic crops tend to

Lessons from the Ecuadorian experiment  183 provoke the loss of genetic diversity in agriculture.”37 The opinion further reasoned that when agrobiodiversity is diminished – which might occur when genetically modified plant varieties are preferred over local landraces – Ecuadorian campesinos would likely experience a “loss of traditional practices and productive systems, and of the alimentary habits and customs associated with the distinct varieties that are being lost.”38 Finally, Judge Paucar related these outcomes to the likelihood that intellectual property would be increasingly utilised to render plants and seeds as proprietary economic goods. If this were to occur, Judge Paucar opined that it would be more difficult for Ecuadorian campesinos to obtain the inputs that they need to grow crops, which could jeopardise food sovereignty and the buen vivir rights that the 2008 Constitution had recognised. This line of reasoning was made explicit in Judge Paucar’s statement that …food sovereignty would be exchanged for food dependency, given that the production of food historically has been based on local seeds (semillas criollas) that form part of the life and ancestral culture of campesinos, [which] would be exchanged for transgenic seeds with public or private patents.39 Judge Paucar elaborated on why he believed that intellectual property for plants represented a problem for Ecuadorian agriculture by contrasting customary campesino practices with the industrialised systems on which genetically modified plant varieties typically depend. Thus, “the power of the oligarchy that concentrates the production of plant reproductive material is great, and it has benefitted from a system of patents that governs and controls the biotechnological industry.”40 According to the judge, “the different commercial treaties that have been signed under the cover of the globalisation process from the 1990s to the present” have consolidated this power.41 These statements indicate that Judge Paucar viewed intellectual property as a problem of external control over Ecuadorian agriculture, and thus as a manifestation of the kind of economic subjugation that the Citizens’ Revolution government perceived in the globalisation of neoliberal capitalism. Understood this way, “to allow patents for seeds is to permit a private, for-profit entity to appropriate a common good to which all of us have the right to access and keep.”42 Since the creators of genetically modified plants invariably privatise the new varieties that they develop by utilising intellectual property laws, the predominance of transgenic seeds would mean that seeds are produced exclusively by a few transnational firms that protect them with patents or other rights. This would lead subsistence campesino production in Ecuador to encounter serious difficulties to buy the seeds necessary to survive each season.43 These arguments are not new, as we have seen in the standard criticisms of intellectual property for plants that the first four chapters of this book analysed.

184  Experimenting with an eco-centric approach However, what is novel about the opinion in the transgenic soybean case is that Judge Paucar interwove a reproach of the proprietisation of vegetal life with the Ecuadorian constitutional conceptions of sumak kawsay and the rights of nature. For instance, In addition to the rights of all people in general, directly and indirectly with this type of crop the right to buen vivir (sumak kawsay) is also being affected, given that through genetic engineering, in these seeds and crops the structure of the DNA molecule, also known as the molecule of life, is being manipulated to alter its functions.44 Viewed this way, the release of genetically modified organisms into Ecuadorian ecosystems “is not respecting the maintenance, nor the regeneration of natural cycles, as the Constitution of the Republic of Ecuador mandates.”45 Therefore, Judge Paucar reasoned that the sections of the 2008 Constitution that established the rights of nature “prohibit the introduction of organisms and organic and inorganic material that can definitively alter the national genetic heritage.”46 This could occur in the present case, because “through the flow of genes from a transgenic plant to a wild or cultivated species, there could be genetic contamination, which upon being incorporated into the [host] genome, will be transmitted to the following generations.”47 After concluding that the cultivation of transgenic soybeans violated several of the guarantees that the 2008 Constitution had established, Judge Paucar ordered governmental authorities to confiscate, remove, and incinerate all of the crops containing the CP4 EPSPS protein that had been detected in the Los Ríos province.48 Furthermore, the verdict mandated that the Ministry of Agriculture must undertake recurring tests to ensure that genetically modified crops are not being grown in Ecuador, and if they are, to confiscate, destroy, and incinerate them, unless these plants are being used solely for research purposes.49 The Ministry of Agriculture was also ordered to conduct capacity-building exercises with farmers and with Ministry personnel to make them aware of the constitutional prohibition related to transgenic crops and seeds.50 Additional remedies included the instruction that the case files be sent to the offices of the prosecutors of all of the cantons in which the presence of genetically modified soybeans was detected to facilitate enforcement.51 Finally, Judge Paucar required the Ministry of Agriculture to publish the phrase “Ecuador free of transgenic crops and seeds according to Art. 401 of the Constitution of the Republic of Ecuador” on its website as a symbolic remedy.52 The opinion in the transgenic soybean case reflected the kind of dichotomous thinking about intellectual property for plants and food sovereignty that Chapter 7 of this book sought to undermine. Furthermore, it appears that Judge Paucar wholly imported the plaintiffs’ anti-genetic modification arguments without considering whether, and if so how, certain uses of biotechnology might be compatible with the buen vivir rights and the rights of nature that the 2008 Constitution enacted. For instance, would a transgenic plant variety developed

Lessons from the Ecuadorian experiment  185 by a public organisation – such as the National Agricultural Research Institute of Ecuador – rather than a multinational corporation be compatible with buen vivir rights of people and the rights of Pachamama if the variety were made broadly available to Ecuadorian campesinos? Are there any circumstances under which the possibility of genetic drift would not negatively affect the “natural cycles” of Ecuadorian ecosystems, such as if only native plant species were used to develop new genetically modified varieties? Would the use of a compulsory licence by the National Service for Intellectual Rights to make a transgenic crop owned by a foreign company broadly available violate the newly recognised constitutional rights? Notwithstanding the lack of nuance in the reasoning of the transgenic soybean decision, the case was significant for its injection of the rights of nature doctrine into debates about the implications of intellectual property for plants, which, both in Ecuador and globally, have stagnated in recent years. Although Judge Paucar’s opinion did not introduce fundamentally new ideas into conventional narratives about how the law treats vegetal life, the verdict demonstrated that the rights of nature as a legal concept – in addition to other related notions, especially sumak kawsay – are now available to shape Ecuadorian jurisprudence. The case therefore represents an important milestone in the ecological turn for which this book has argued, towards the reconfiguration of human-plant interactions in law.

8.3 Lessons from eco-centric experiments in lawmaking The story of the eco-centric approach that Ecuador has taken to policy development will likely continue to unfold for many years to come. Nevertheless, we can draw some initial lessons from the Ecuadorian experiences that have accrued over the past decade. The precedents that this book has described are the various novel legislative and regulatory frameworks that in some ways reconfigured human-plant interactions, in addition to litigation that substantiated the meaning of the rights of Pachamama. The regimes that have been analysed included especially the 2008 Constitution, the Ingenios Act systems of intellectual property for plants and of traditional knowledge protection, the 2017 Seed Law, and the 2009 Food Sovereignty Law. Furthermore, the present chapter has illustrated how the Ecuadorian instantiation of the rights of nature has shaped jurisprudence in the country through diverse judicial decisions. One general conclusion that arises from the exploration of the Ecuadorian experiments in lawmaking is that even where eco-centrism – or in the parlance of the delegates to the constitutional Constituent Assembly, “biocentrism” – is an explicit goal, it may be unlikely that legislators and other government officials will take plants seriously as subjects of protection rather than merely objects of human use. For instance, the lawsuits that have elaborated the meaning of the rights of nature in the Ecuadorian context since the enactment of the 2008 Constitution mostly adjudicated controversies involving activities that affect whole ecosystems (e.g. mining), specific non-living geographical features (e.g. rivers),

186  Experimenting with an eco-centric approach or animals (e.g. illicit hunting and fishing). It was not until 2019 that a court in Ecuador considered what the rights of nature might mean for the administration and protection of vegetal life. Furthermore, even in the transgenic soybean case, the focus of both the plaintiffs’ arguments and Judge Paucar’s decision centred mainly on anthropocentric uses of plants. That is, one of the most controversial questions considered was whether the cultivation of genetically modified crops in Ecuadorian fields might change how agriculture is practised in the country. A major concern was that a shift to growing transgenic soybeans would not be compatible with campesinos’ ancestral knowledge, customary practices, and livelihoods: for instance, if farmers were not able to save and replant seeds. Another source of unease was that the introduction of genetically modified crops into the country would undermine food sovereignty because growers would not own – and therefore, would lose control over – the inputs that they require to produce food, including seeds and agrichemicals. Notably, the decision in the transgenic soybean case was also influenced by concerns that the cultivation of genetically modified plants would affect native Ecuadorian biodiversity. The plaintiffs and Judge Paucar alike worried about the possibility of genetic drift – that DNA from Roundup Ready® soybeans would be incorporated into the genomes of local varieties and thereby “contaminate” them.53 It could be argued that this way of thinking demonstrated an attempt to move beyond anthropocentrism to support the thriving of vegetal life for its own sake. However, it is important to acknowledge that the assumptions that the parties to the case made about “invasive” genetic material were necessarily tenuous. This is because the identification of any particular variety or species as an invader is a process that is conditioned by cultural and political circumstances, not by factors inherent to a given ecosystem.54 Therefore, whether to embrace or reject plants that are produced through biotechnological methods such as transgenesis is fundamentally a question of political ecology and economy.55 In theory, the rise of technologies that allow for the transfer of genetic material across species boundaries should raise distinct ethical considerations in comparison to classical plant breeding methods. However, in practice these quandaries are tempered by the findings of contemporary molecular biology, which “has discerned thick lateral gene transfer tangling up taxonomic boundaries almost everywhere,”56 supporting an understanding of the species concept as essentially fluid and constructed.57 For this reason, perhaps the most compelling criticisms of the proposed introduction of genetically modified crops into Ecuador in particular and Latin America in general centre on social rather than environmental issues, including whether “neoliberal globalism” is an appropriate economic model for the region.58 Debates related to this question have triggered broader contestation over developmentalism as contrasted with Indigenous understandings of how human beings should relate to the non-human world, including plants, as prior chapters of this book discussed. The transgenic soybean case – situated in the context of the broader Ecuadorian rights of nature jurisprudence and the corresponding reordering of human-plant

Lessons from the Ecuadorian experiment  187 relations in law – demonstrates that it is difficult to remove anthropocentric concerns from the governance of non-human life. Ultimately, the controversy over the potential cultivation of genetically modified crops was at least as much about politics, economics, and competing visions for how agriculture should be practised in Ecuador as it was about the plants themselves. As is common in debates about farming, food production, and environmental conservation, interested parties’ arguments painted romanticised pictures of campesino agriculture, nature as a static and pristine idealised landscape, and the boundless potential of rationalist techno-science. The Ecuadorian story demonstrates that even where people try to take nature seriously, it remains exceedingly challenging for us to adopt the perspective of non-human others. Even if we could agree in theory to a “dialogical approach” that would avoid imposing human understandings on vegetal life and thereby allow plant “voices” to be heard,59 translating this way of thinking into law would be a daunting undertaking. Of course, it would be overly generous to assume that Ecuadorian lawmakers truly attempted to assume the perspective of plants in a systematised manner when they redesigned the national intellectual property legislation or other related legal regimes, including the system for seed certification and the Indigenous knowledge governance and food sovereignty frameworks. The many interactions that I have had with Ecuadorian officials and other stakeholders throughout the six years of research that informed this book lead me to believe that the desire to catalyse an eco-centric turn in policy was genuine and widely shared across many levels of the government and civil society. Nevertheless, the very human constraints that lawmakers faced fundamentally affected the policy formation process. These limitations arose out of factors including political pressures – for instance, to actualise the Citizens’ Revolution development agenda – legal obligations embodied in international agreements, and the need to reach a compromise that would balance the interests of different human constituencies. Another complication was simply that many lawmakers lacked substantive knowledge of the subject matter at issue, or for various reasons were unable or unwilling to imagine truly radical approaches to the governance of non-human life forms. In Ecuador, like everywhere else on Earth, lawmaking does not occur in a vacuum. Still, the Ecuadorian experiment with eco-centric lawmaking provides an interesting history on which to reflect, and a source of inspiration for future efforts to take plants seriously in law. One major reason for this is that by recognising the rights of nature in the national Constitution, the Ecuadorian legal system has, at its highest level, moved beyond the conventional subject/object binary that today characterises most laws of all kinds throughout the world. That is, the rationalist legal frameworks that contemporarily predominate tend to conceive of human individuals – and institutions, as in the case of States and corporations – as the subjects of rights, while non-human beings – including plants, animals, other life forms, and non-living elements of ecosystems – are understood as objects. In this way, the major legal regimes that currently deal with vegetal life – namely, intellectual property laws, seed laws, and frameworks based on the

188  Experimenting with an eco-centric approach global biodiversity treaties – conceptualise plants alternately as technologies, inventions, resources, or goods that have exchange value in human economies and use value to enhance human lives. In contrast, the Ecuadorian notion of the rights of nature transformed all elements that comprise Pachamama, including plants, into legal subjects. This change is significant, because human rights such as the right to work or to own property must now be balanced with the rights of the non-human entities that comprise nature, an exercise that has already been trialled in several of the recent rights of nature cases. Indeed, it is precisely this kind of equilibration that occurred in the transgenic soybean litigation. While it is possible that the same outcome could have resulted in the absence of constitutionalised rights of nature  – especially given the guarantee recognised in the 2008 Constitution that Ecuador is a country “free of transgenic crops and seeds” – the genetically modified soybean case nevertheless produced an important precedent, for both domestic and global legal regimes. For example, although the revised system of intellectual property for plants that the Ingenios Act introduced did not radically deviate from international standards, it did exempt certain plant varieties from privatisation on the grounds of food sovereignty, food security, and environmental security. Coupled with the constitutional rights of nature and the precedent set in the transgenic soybean case, it is now possible to imagine that intellectual property protection might be denied or rescinded if the privatisation of a particular plant variety were not in the best interests of Pachamama or would impede the realisation of sumak kawsay. This could occur if, for example, non-economic human uses of the variety were prioritised over its exchange value (“food sovereignty”), or perhaps because non-human concerns such as the protection of particular ecosystems were given precedence over human interests (“environmental security”). Another example of how human and non-human matters of concern intersect in the context of the legal regulation of vegetal life is found in considerations of biodiversity. That is, the adoption of policies that would increase rather than diminish plant genetic variability could benefit both human and non-human life forms. From the perspective of human actors, the advantages of enhancing the diversity of vegetal life are well known and centre especially on the understanding that the sustainability of food production is ensured where a broad plant genetic base may be utilised for germplasm collection, cultivation, and breeding. From the perspective of plants – and indeed, ecosystems as constantly evolving wholes – diversity augments the potential of a given species to survive and thrive – in other words, to live. Furthermore, as in human societies, I believe that the importance of diversity in a given biome is not merely instrumental. Instead, complexity enriches the experience of existence for all beings that inhabit a particular environment, for reasons that are as much affective as they are pragmatic. Given all of these considerations, and against the backdrop of the Ecuadorian experiment, we may now ask, what might a legal system that takes plants seriously look like? Foremost, irrespective of its other functions, an eco-centric law would establish a mechanism to protect plants for their own sake. One way to

Lessons from the Ecuadorian experiment  189 do this would be to follow the example of Ecuador, by recognising the rights of nature, and by mandating that these guarantees be balanced with the rights of human individuals and institutions. Doing so would allow legal arbiters to consider whether certain circumstances dictate that the rights of nature should outweigh the proprietary rights of humans, including intellectual property claims to plants. Furthermore, an eco-centric legal system would treat vegetal life ethically, starting with an appreciation for the distinct “selfhood” of plants. As in the Ecuadorian jurisprudence that this chapter has analysed, the law could be expanded to conceive of diverse life forms as subjects of rights, irrespective of the taxonomic kingdom to which they pertain. Doing so should be understood as an opportunity for our own existential growth, because “[w]orking for the benefit of other-than-human persons allows the reclamation of positive human ecological influence on the natural world.”60 At a time when many discourses lament the “tragedy of the Anthropocene,” incorporating a multispecies ethics into the law represents one option to radically rethink political and historical relationships between humans and nature, to take seriously the prospect of environmental doom and also the possibility of global survival.61 Rather than a set of policy prescriptions, what this book calls for is a new way of thinking, with an ecological turn in lawmaking as the aspired-for practical outcome. Instead of proposing a moratorium on the utilisation of plants for human purposes, the goal should be understood as a movement away from the “human relation to plants on the basis of commodity-economic logic”62 as the sole motivation for policymaking. In effecting this transformation, the contention is not that conventional legal approaches to the regulation of vegetal life – including as manifested in intellectual property laws, systems of seed certification, or regimes for biodiversity conservation – should be rejected outright. Nevertheless, it is important that we begin to institute alternative visions for the governance of human-plant relationships. When reimagining the law, we should pay attention to Pachamama – meaning that we should respect the subjectivity of both non-human life forms and the subaltern human groups whose ways of knowing the world have largely been marginalised. The hope is that if the law were (re)made strange, it might recognise the special nature of the subjectivity of vegetal beings and the many kinds of relationships that humans have with them. Thus, by taking plants seriously, new systems of governance might be imagined, towards the mutual flourishing of human and non-human lives.

Notes 1 Vergara Ortiz, F. (6 June 2008). Asamblea Constituyente Acta 058. 2 Constitución de la República del Ecuador de 2008, Art. 408. 3 Boyd, D. R. (2017). The Rights of Nature: A Legal Revolution that Could Save the World. Toronto, Canada: ECW Press. p. 177. 4 Kauffman, C. M. & Martin, P. L. (2016). Can Rights of Nature Make Development More Sustainable? Why Some Ecuadorian Lawsuits Succeed and Others Fail. World Development, 92, 130–142: 133.

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Appendix A: Tables

Table A.1 Types of Legally Unbound Countries (47 Total) Non-WTO Countries

WTO Observers 2 Ethiopia 3 Iran 4 Lebanon 6 South Sudan 8 Timor-Leste

WTO Members Classified as “Least Developed”

208  Appendix A: Tables Table A.2 Countries Bound Only to the TRIPS Agreement (48 Total) TRIPS-Only Countries 1 Antigua and Barbuda





Table A.3 Countries Bound to UPOV 1978 (15 Total) UPOV 1978 Countries 1 Argentina 2 Bolivia 3 Brazil 4 Chile 5 China 8 Mexico



Appendix A: Tables  209 Table A.4 Countries Bound to UPOV 1991 (80 Total) UPOV 1991 Countries





1 Algeria 2 Armenia 3 Azerbaijan 4 Bangladesh 6 Canada 7 Egypt 9 Jordan

European Commission

2 North American Free Trade Agreement (Canada, Mexico, United States) 3 European Union-Andean Community (EU, Colombia, Ecuador, Peru) 4 ASEAN-Australia-New Zealand (Australia, Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, New Zealand, Philippines, Singapore, Thailand, Vietnam)



European Free Trade Association (EFTA)



Regional Agreements

Bilateral Agreements

Table A.5 Free Trade Agreements that Require Membership of UPOV



Trans-Regional Agreements

210  Appendix A: Tables







Appendix A: Tables  211

Table A.6 Countries Bound to UPOV with Additional Obligations Country

UPOV Version CBD Nagoya Protocol Plant Treaty

Albania Argentina Australia Austria Azerbaijan Belarus Belgium Benin Bolivia Bosnia and Herzegovina Brazil Bulgaria Burkina Faso Canada Cameroon Central African Republic Chad Chile China Colombia Comoros Congo Costa Rica Côte d’Ivoire Croatia Cyprus Czech Republic Denmark Dominican Republic Ecuador Egypt Estonia Equatorial Guinea Finland France Gabon Georgia Germany Greece Guinea Guinea-Bissau Hungary Iceland Ireland Israel Italy Japan

UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1978 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991

X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X

X X X

X X X X

X X X X

X X X

X X X X X

X X X X X X X X

X X X X X X X X X X X

X X X X X X X X

X

X X X X X X X X X X X X X X X X X X X X X X X X X

Country

UPOV Version CBD Nagoya Protocol Plant Treaty

Jordan Kenya Kyrgyzstan Latvia Lithuania Luxembourg Macedonia Mali Malta Mauritania Mexico Montenegro Morocco Netherlands Niger New Zealand Nicaragua Norway Oman Panama Paraguay Peru Poland Portugal Republic of Korea Republic of Moldova Romania Russian Federation Senegal Serbia Singapore Slovakia Slovenia South Africa Spain Sweden Switzerland Tanzania Togo Trinidad and Tobago Tunisia Turkey Ukraine United Kingdom United Republic of Tanzania United States of America Uruguay Uzbekistan Viet Nam

UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1978 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1991 UPOV 1978 UPOV 1991 UPOV 1991

X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X X

X X X

X X X

X

X X X X X

X X

X X X X X X X X X X X X X X

X X X X

X X X X X X X X X X X

X X

X X

X

X X

X X X

X X X X X X

X X

X

X X X X X X X X X X X X

Federation of Indigenous and Peasant Organisations of Azuay vs Ministry of the Environment

Shiva vs British Petroleum

Aguirre vs Government of Santa Cruz

Espinoza vs PRONACA

Ministry of the Environment vs Obando Oficio No. 0626-2011 J22GPP

Huddle vs Provincial Government of Loja García vs de los Santos

Allegation that the Río Blanco mining project was approved without prior consultations with local communities

Plantation of non-native Pinus radiata in sensitive páramo ecosystem Dumping of debris in the Vilcabamba River, resulting in overflow Unauthorised shrimping in the CayapasEsmeraldas Reserve Illegal killing of a jaguar, a protected species Requested injunction to halt unauthorised mining in Esmeraldas province Claim against an industrial pig farm for harming the environment, local economy, and health and well-being of a Tsáchila community Construction of a road in the Galapagos Islands without an environmental permit Environmental damage caused by the BP oil spill in the Gulf of Mexico State

Protection Penal Injunction

2011–2015 2015 2011

Civil Society

Injunction Protection Protection

2012 2010–2013 2018–2019

Civil Society

Civil Society

Civil Society

2008–2009 Protection

State

State

Civil Society

2009–2018 Protection

Negative

Civil Society

Positive

Negative

Positive

Positive

Positive

Positive

Positive

Positive

Negative

Positive

State

Civil Society

Negative

Outcome for Rights of Nature

Civil Society

Plaintiff

Protection

2014–2015

Proposed open pit copper mine in the 2013 Protection Condor mountain range Illegal shark fishing in the Galapagos 2011–2015 Penal Islands Alleged inconstitutionality of the national 2009–2010 Constitutionality Mining Law

Type of Action

Acción Ecológica vs Ecuacorriente Galapagos National Park vs Pachay Confederation of Indigenous Nationalities of Ecuador vs Ecuador Cadena vs Holguin

Year(s)

Issue

Name

Table A.7  Ecuadorian Rights of Nature Cases4

214  Appendix A: Tables

Town of Sucumbíos vs Ministry of the Environment

Protection Injunction Injunction Injunction Injunction Injunction Constitutionality Penal Penal Penal

2013 2013 2013 2015 2016 2016 2010–2012 2015–2016 2017–2019 2013–2015

Protection

Protection

2012 –2015

Mining without obtaining prior informed 2018–2019 consent from the A’L Cofán Sinangoe community

Sentence No. 218-15-SEP-CC Unauthorised mining in the Pastaza province Egas vs Mesa Unauthorised mining in Pedro Moncayo Canton Mendizabal vs Hanze Damages caused by oil spill on the Esmeraldas River Larrosa vs National Internal Proposed sale of land in the Samama Revenue Service Protective Forest De la Cruz vs Marfragata Fishing in the Valdivia marine reserve, with alleged damages to archaeological sites Cordova vs Puyango Canton Earthworks causing damage at a recreational centre in the Loja province Case No. 2016-00399 Infraction to halt the utilisation of four artisanal oil pools in the Sucumbíos province Salazar vs Ecuador Inconstitutionality of a special law for the administration of the Galápagos province Illegal transportation of sea cucumbers in Galapagos National Park vs Rodriguez the Galapagos San Cristobal vs Li Unauthorised transportation of more than 6,000 sharks from the Galapagos Islands Valencia vs Damian Illegal hunting of a condor, an endangered species Civil Society

State

State

State

Civil Society

State

Civil Society

Civil Society

State

Civil Society

Civil Society

State

(Continued)

Positive

Positive

Positive

Positive

Positive

Positive

Positive

Negative

Positive

Positive

Positive

Positive

Appendix A: Tables 215

Civil Society

Protection Protection

Injunction Protection

Administrative

Administrative

2019 2019

2019 2019

2015

2011

Ministry of the Environment vs Secoya San Pablo

Case No. DPE-1701-17010419-2015-000178

López vs Ministry of the Environment

Dene vs Ecuacorriente

Cevallos vs Ministry of the Environment

Civil Society

2009–2018 Non-compliance

State

State

Civil Society

Civil Society

Civil Society

Civil Society

Damages caused by an unlicensed pork farm in the Mera canton Concession of petroleum mining lease without proper consultation with a Waorani community Concession of a mining lease without proper consultation with a local community in the Los Cedros protected forest Injunction sought based on the allegation that a planned series of dams would violate the rights of nature Claim that the plan to build a hydroelectric plant on the Piatúa River did not comply with the prior, free, and informed consent process with a Kichwa community Request to halt the construction of the Macuma –Taisha highway, based on effects to water sources and vegetation in the Kutuku-Shaimi protected forest Sanctions by the Ministry of the Environment based on the felling of 173 hectares of native forest to sow African palm in the Sucumbíos province

Protection

2018–2019

Cultivation of transgenic soybeans in the Los Ríos province

Plaintiff

Federation of Agricultural Centres and Organisations of the Coast vs Ministry of Agriculture Garzón vs Municipal Government of Mera Boyotai vs Ministry of the Environment

Type of Action

Year(s)

Issue

Name

Positive

Positive

Negative

Negative

Positive

Positive

Positive

Positive

Outcome for Rights of Nature

216 Appendix A: Tables

Appendix A: Tables  217

Notes

Appendix B: Figures

Country in black: United States Countries in dark grey: United States trading partners

Figure B.1 United States Free Trade Agreements.1

220  Appendix B: Figures

Countries in black: Europe (including the European Union and the European Free Trade Association) Countries in dark grey: European trading partners

Figure B.2 European Free Trade Agreements.2

Countries in Black : Parties to the Regional Comprehensive Economic Partnership (RCEP) and/or the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP)

Figure B.3 Other Free Trade Agreements.3

Appendix B: Figures  221

Notes

Index

Acosta, Alberto 29, 100 African Intellectual Property Organization 160 Afro-Ecuadorians 11, 126 Agency for Agricultural Quality Assurance of Ecuador 181 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 5, 7–8, 62–66, 71–74, 87–89, 111, 115–116, 118, 208 agrichemicals 81, 186 agrobiodiversity 4, 9, 53, 86, 127, 129, 144, 149, 151–153, 157–158, 169–170, 176–177, 181–183 agroecology 52, 59, 74, 152, 170 Alfaro, Eloy 15, 179 Alianza PAIS 29, 100, 102 ancestral knowledge 38, 102, 107–108, 111, 129, 150, 157–163, 165–169, 186 Andean Community 70–71, 118, 129, 136–142, 210 animism 21, 41 anthropocentrism 9–10, 15, 31, 33–34, 74, 91–92, 102, 149–150, 158, 170, 176, 180, 186–187 anthropomorphism 20 Argentina 101, 105, 208, 210, 212 Aristotle 18, 39 artichokes 44, 128 asexual reproduction 44–45, 47, 154 Attorney General of Ecuador 181 Australia ix, 52, 66, 72–73, 80, 209–212, 217 Aymara 30 bacteria 22, 43 bananas 41, 55, 102 barley 155

benefit sharing 4–5, 73, 84–87, 90–92, 138–139, 142, 164 Bhutan 53, 65, 207 biocentrism 31, 185 biodiversity 2, 5–6, 8, 27–30, 32, 34, 41, 67–68, 73, 80, 82, 84, 88–92, 99, 126, 149–150, 156–157, 159, 162–163, 186, 188–189 bioeconomy 156 biological resources 84, 90–91 biopiracy 82, 104, 159, 163 bioprospecting 2, 90–91, 159 biosocialism 100, 169 biotechnology 22, 52, 82, 132, 134, 139, 153, 156, 183–184, 186 Bolivia 25–28, 30, 70, 101, 208, 212 Buddhism 21 buen vivir 8, 16, 27, 30, 38, 99–103, 106–110, 112–114, 120, 126–127, 143–144, 150–151, 153, 156, 158, 161, 169, 177, 182–185; buen vivir rights 183–185; buen vivir socialism 101–103, 110, 120, 127, 151, 177 cacao 41, 55 campesino seeds 153–155, 157–158 campesinos 7, 11, 29, 40–41, 53, 105, 126–129, 131, 135, 143, 150–158, 169, 176, 181, 183, 185–187 Cantonal Agricultural Centre of Quevedo 181–182 carnations 41 centre of origin 155 certified seeds 151, 153–154, 156 Chile 66–67, 70, 72–73, 208, 210–212 China 73, 208, 210, 212 Citizens’ Revolution 102, 107, 115–117, 120, 124, 126–127, 143, 153, 161, 165, 167, 169, 177, 178–179, 183, 187

224 Index climate change 1, 27, 40, 162 coffee 41 cognitive capitalism 143 cognitive dependency 107, 109, 112 Colombia 25, 67, 69–70, 72, 81, 141, 208, 210–212 Columbian Exchange 80 common heritage 81–84, 88–89, 91 Community Environmental Defense Fund 25 Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) 65–66, 217, 220 compulsory licensing 69, 111, 114, 119, 137, 140, 185 Confederation of Indigenous Nationalities of Ecuador 156, 214 Constitution of the Republic of Ecuador, 2008 3, 15–16, 28–32, 42, 99–100, 102, 106–107, 109–110, 112–115, 124, 126–127, 129, 149, 151, 156, 160–161, 169, 176–181, 183–185, 188 Convention on Biological Diversity (CBD) 8, 73–74, 84–91, 142, 212–213 copyright 42, 69, 112, 116, 118, 133, 159, 162, 166 corn 21–22, 81, 181 Correa, Rafael 29–30, 69, 100, 102, 105, 111, 115, 117, 126, 179 cosmology 30, 41, 114, 119, 161 Cuba 46, 208 cultivar 81 customary agriculture 40–41, 52–53, 73–74, 91, 127, 150–158, 168, 181, 183, 186 customary law 16, 23, 86, 164–165 Darwin, Charles 18–19 Decision 345 70, 128, 136–141 Decision 391 138 dialogue of knowledges 107, 152, 156, 161, 169 Dieterich, Heinz 101, 103 Diplomatic Conference on the Protection of Plant Varieties 46, 48 distinctness 45, 47–48, 54, 132, 134–135, 138 distinctness, uniformity, and stability (DUS) criteria 47–48, 132, 134–135, 138 eco-centrism 1, 3, 8–10, 16, 28, 32, 33, 92, 99, 149, 176, 185, 187–189 Ecological Action 156, 181

ecological turn 2, 6, 9, 17, 33–34, 149, 176–177, 185, 189 ecology of selves 21 economic development 30, 100–101, 105–106, 108–109, 112, 116–117, 143, 150, 156, 161, 167, 177, 186– 187; alternative to 108–109, 143, 161 Ecuador – European Union Commercial Agreement (2016) 8, 69–71, 119, 129, 141, 143, 210 Ecuador Free of Transgenics Collective 156 Ecuadorian Constituent Assembly 15–16, 28–31, 100, 120, 126, 176, 185 Ecuadorian Intellectual Property Institute ix, 3–4, 105, 112, 117–119, 128 Ecuadorian National Assembly ix, 4, 102– 106, 108, 111, 117, 128, 151–152, 169 Ecuarunari 156 endangered species 180, 215 Enlightenment 6, 18 environmental security 129, 188 essentially derived varieties 50–51, 139–141, 143 Ethiopia 53, 65, 207 European Patent Convention 52 European Union 8, 65–66, 69–73, 89, 119, 129, 141, 143, 210, 219–220 exhaustion 137, 140, 142 exports 40–41, 50, 101–102, 109, 137, 158, 178 ex-situ 87, 163 farmer seeds 152–153, 158 farmer’s privilege 68, 136–137, 140–142 farmers’ rights 84, 86–88, 91, 132, 157 farmers’ varieties 53–54, 88, 130–135, 140, 143, 158 fava beans 155 Federation of Agricultural Centres and Campesino Organisations of the Coast vs Ministry of Agriculture (2019) 181–185, 214 feed crops 39, 81 fertilisers 151 fishing 180–181, 186, 214–215 flowers 52, 128 Food and Agriculture Organization of the United Nations (FAO) 40, 81–83, 86–87 food security 40–41, 129, 151, 157, 188 food sovereignty 4, 9, 29, 99, 127, 129, 151–153, 157, 168–170, 176, 181–188 forests 17, 24, 40, 141, 180, 215–216

Index  225 fossil fuels 32, 178 Framework Law of Mother Earth and Holistic Development for Living Well, 2012 (Bolivia) 27–28 France 105, 209, 212 free trade agreements 8, 55, 63–67, 69–73, 89, 102, 111, 119, 129, 141, 143, 210, 219–220 fruits 52, 128, 141 fungi 22 gene banking 80–81 General Agreement on Tariffs and Trade (GATT) 61–62 genetic drift 185–86 genetic engineering 133, 184 genetic erosion 81–82 genetic heritage 32, 178, 184 genetic modification 51, 156, 181–188 genetic resources 2, 8, 17, 34, 54, 80–91, 133, 138, 142, 151, 153, 155, 157, 159, 162–163; access to 34, 82–86, 90–92, 133, 138, 142 germplasm 80–84, 86–88, 91, 142, 188 global biodiversity treaties 5, 8, 73–74, 84, 88, 91, 157, 159, 163, 188 Global Plan of Action for the Conservation and Sustainable Utilization of Plant Genetic Resources for Food and Agriculture 86 global seed commons 91 grapes 128 Great Britain 42 Green Revolution 80–82, 151 Hinduism 21 homogeneity 44, 47–49 horticulture 42, 49 hunting 80, 180–181, 186, 215 hybrids 21, 133–134 identifiability 54 India 25, 53, 65, 73, 131–132, 158, 208, 210 Indigenous knowledge 2, 9, 30, 34, 82, 86, 91, 99, 102, 107–110, 127, 149–150, 152–153, 159–168, 186 Indonesia 73, 208, 210–211 industrial agriculture 40–41, 52, 74, 91, 127, 149, 151–152, 154, 156–157, 168, 181, 183 industrial plants 128 Ingenios Act (a/k/a Organic Code for the Social Economy of Knowledge,

Creativity and Innovation, 2016 (Ecuador)) 3–4, 8–9, 32–33, 70, 103–120, 127–133, 136–144, 149, 151, 157–158, 160–168, 170, 185, 188 Ingenios Bill 3–5, 103–106, 108–109, 111, 118, 120, 143, 160 Ingenios General Regulations 132–135, 140 Ingenios Technical Regulations 113, 133–135, 140, 164–166 in-situ 84, 165 instrumentalism 1–2, 5–8, 18, 20–23, 33–34, 39, 41, 55, 61, 74, 89–91, 99, 127, 135, 143, 149–150, 170, 176, 188 integrated seed systems 150 Intellectual Property Law of 1998 (Ecuador) 6, 102, 108, 118, 127, 130, 132, 143, 160 intellectual rights 161–162 interculturality 107, 115, 161 Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore 159 International Board for Plant Genetic Resources 81 International Conference on Crop Plant Exploration and Conservation 81 International Treaty on Plant Genetic Resources for Food and Agriculture (the Plant Treaty) 8, 73–74, 87–91, 142, 155, 157, 212–213; Annex I 88 International Undertaking on Plant Genetic Resources for Food and Agriculture 82–84, 86, 89 International Union for the Protection of New Varieties of Plants (UPOV) 5, 7–9, 46–54, 63–68, 70–74, 83, 87–89, 128–132, 134–143, 149, 208–210, 212–213; Convention, Act of 1961 46–49, 132, 137; Convention, Act of 1978 46, 48–51, 54, 63–64, 66, 70–71, 89, 128, 132, 136–141, 143, 208, 212–213; Convention, Act of 1991 46–53, 63–64, 66–73, 87, 89, 128, 137, 139–143, 209, 212–213 invasive plants 186 invention 2, 7, 32–33, 42–47, 52, 138; inventorship 43 Jainism 21 Japan 52, 66, 73, 209–212, 217 Kichwa 16, 30–31, 41, 216

226 Index landrace 51, 81, 88, 129, 151, 183 Law for Agrobiodiversity, Seeds and Promotion of Sustainable Agriculture, 2017 (Ecuador) 9, 151–158, 170, 185 Law of the Rights of Mother Earth, 2010 (Bolivia) 26–27 least developed countries 63–64, 207 legitimate possession 162–164, 166–167 maize 22, 155 Malaysia 53, 65–66, 131, 208, 210, 217 mandarin oranges 128 Mendel, Gregor 42–43 Mexico 22, 66, 81, 105, 208, 210, 213, 217 mining 25, 32, 101, 179–181, 185, 214–216 Ministry of Agriculture of Ecuador 4, 150, 156, 181, 184, 216 Ministry of Higher Education, Science, Technology and Innovation of Ecuador 4, 104–105, 112–114, 117–118 Ministry of the Environment of Ecuador 178–179, 182, 214–216 Ministry of the Interior of Ecuador 179 molecular biology 19–20, 51, 186 monoculture 151, 170 Montecristi 15 Montubios 11, 122, 127 morphological characteristics 48 Mother Earth 26–28 mutually agreed terms 85–86 Myanmar 65, 207, 210 Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization (Nagoya Protocol) 4–5, 8, 73–74, 85–86, 88–90, 142, 212–213 National Agricultural Research Institute of Ecuador ix, 3–4, 185 National Environment Act, 2019 (Uganda) 26 National Plan for BuenVivir (Ecuador) 109, 150, 161 National Service for Intellectual Rights of Ecuador ix, 4, 112–113, 132–134, 164–166, 185 National System for Science, Technology, Innovation and Ancestral Knowledge of Ecuador 32, 111–112, 118 native seeds 151–158 natural resources 30, 32, 84, 109, 178

naturecultures 22 neo-Darwinism 19 neoliberalism 29–30, 100–103, 108–109, 117, 120, 135, 166–168, 183, 186 Nepal 59, 65, 78, 131, 134–135, 168, 207 New Zealand 25–26, 52, 93, 208, 210, 213, 217 Nigeria 81, 208 non-humans 1–2, 7–8, 10, 15–17, 22, 24–25, 28, 30–31, 33, 41, 43, 73, 90, 99, 102, 107, 127, 150, 177, 186–189 novelty 47, 49, 52, 54, 57, 131–132, 160 nullity 138–139, 141–142 nutritional security 41 open access 122 organic agriculture 151–152, 170 Organic Code for the Social Economy of Knowledge, Creativity and Innovation, 2016 (Ecuador) see Ingenios Act Organic Integral Criminal Code, 2014 (Ecuador) 32, 178, 180 Organic Law for the Food Sovereignty Regime, 2009 (Ecuador) 169–170, 185, 187 Organization for Economic Co-operation and Development 46 ornamentals 41–42, 128, 141, 143 ownership 6, 22, 43, 45, 49, 85, 88–92, 106, 109, 113, 128, 158, 161–162, 169 Pachamama 3, 6–7, 9–10, 15–17, 26, 28, 30–33, 42, 99, 102, 149, 151, 176– 179, 180–181, 185, 188–189 paganism 21 parallel importation 142 parental lines 43 participatory democracy 101, 110 Patent Act of 1836 (United States) 43–44 patenting 42–47, 50, 52, 61–62, 64, 69, 74, 105, 110, 112, 116, 124, 133, 137–138, 160, 162, 166, 183 pathogens 81 Paucar, Cesar Elias (J.) 182–186 personhood 22, 25, 30; plants as persons 17, 22, 189 Peru 68–70, 72–73, 105, 141, 173, 209–211 pesticides 151 pests 39, 81 petroleum 41, 55, 181, 214, 216 Philippines 53, 57, 81, 208, 210 physiological characteristics 48

Index  227 pink tide 101, 103, 112 plant blindness 1 plant breeders’ rights 7, 34, 45–48, 50–54, 64, 66–68, 70–72, 83, 87–88, 117, 127–143, 149–150, 164 plant breeding 8, 42, 44, 47, 49, 50–51, 81–82, 84, 130–131, 136, 138–140, 186, 188; farmers as plant breeders 34, 42, 54, 130–135, 140, 150, 176 plant exploration 80–81, 90 plant intelligence 19–20 plant neurobiology 20 Plant Patent Act of 1930 (United States) 42–47, 52 plant rights 23–24 Plant Varieties Protection Act, B.E. 2542, 1999 (Thailand) 53 plant variety 9, 45–54, 88, 118, 129–131, 134–142, 181, 185–186, 188; plant variety protection 52–54, 124 Plant Variety Protection Act of 1970 (United States) 52, 59 plant-thinking 23, 92 Plurinational and Intercultural Conference for Food Sovereignty 152–153, 157 plurinationality 10, 16, 107–108, 161–162 policy space 62–63, 65, 68, 71–72, 120, 124, 132–135, 137, 139–140 post-developmentalism 177 poverty 41, 109 prior informed consent 85, 164, 215–216 privatisation 7, 15, 51, 82, 88, 102–103, 108, 114–115, 128–129, 140, 183, 188 productive matrix 32 propagating material 87, 130, 136, 138 proprietary logic 2, 8–9, 55, 89–91, 150, 158, 167–168, 189 proprietisation 74, 184 protected varieties 46, 50–51, 54, 68, 70, 87, 128, 130, 136–137, 139–142 Protection of Plant Varieties and Farmers’ Rights Act, 2001 (India) 53, 131–132, 158 public domain 2, 88–89, 91, 110, 115, 163 public interest 27, 32, 102, 108, 110, 114, 137 Quechua 41 quinoa 154 Ramírez, René 100, 102, 109, 112–113, 115, 117, 119, 143, 169

rationalism 2, 10, 16, 18, 22, 39, 46, 55, 90–91, 107–108, 135, 149, 156, 159, 161, 166, 187 Regional Comprehensive Economic Partnership (RCEP) 65, 210, 217, 220 replanting 130, 186 return of the State 101, 112 rhizosphere 170 rice 81, 128, 154–155 right to food 53, 58, 129 rights of nature 7, 9–10, 15–17, 23–33, 99, 109–110, 129, 144, 176–182, 184–189 Rockefeller Foundation 80 roses 41, 43 Roundup Ready® 182, 186 Runa 21 samai 41–42 Secretariat of the Pacific Community 160 seed banking 23, 54, 80 seed exchange 41–42, 52, 54–55, 68, 87, 92, 127, 129, 131, 136, 152–156, 158, 169 Seed Law of 1978 (Ecuador) 151–152, 157 seed laws 150–158, 170, 185 seed saving 41, 52, 58, 127, 169 selfhood 21, 189 sexual reproduction 46–47, 49, 52, 59, 154 Shuar 41 smallholders 11, 41, 54–55 socialism of the twenty-first century 101, 103, 113, 119 South Africa 46, 208, 213 soybeans 9, 181–182, 184, 186, 188, 216 Spain 57, 105, 209, 213 Special 301 Report 67, 71 Sri Lanka 66, 131, 208 stability 47–49, 53, 59, 88, 131–132, 134–135, 138, 140 staple food crops 45, 81, 88–89, 128, 155 stewardship 86, 165 strawberries 128 subsistence farmer 40–41 sugarcane 128 sui generis laws 61–64, 66, 70, 72, 74, 118, 131, 160 sumakkawsay 8–9, 16, 27, 29–31, 33, 42, 99–101, 107–108, 153, 158, 182, 184–185 sustainable agriculture 9, 87, 99, 127, 149, 151, 157, 168, 176

228 Index Tamaqua Borough 24–25 Thailand 53, 57, 65, 131, 208, 210 threatened species 180 trademarks 42, 112, 117, 133, 166 traditional knowledge 2, 9, 34, 38, 40, 86–88, 90, 99, 104, 106–107, 109, 112, 127, 133, 144, 152, 157–169, 176, 182, 185 traditional seeds 153–158 transgenic plants 9, 51, 152, 155–156, 181–186, 188, 216 trees 42, 50, 58, 141, 180 Tsáchila 165, 181, 214 Uganda 25–26, 207, 213 uniformity 47–49, 53–54, 59, 88, 131–132, 134–135, 138, 140 United Nations Conference on Environment and Development 84 United States of America ix, 15, 24–25, 29, 42–48, 52, 61, 65–73, 80, 84, 89, 101, 209–211, 213, 219–220

Universal Declaration of Plant Rights 23 UPOV see International Union for the Protection of New Varieties of Plants utilitarianism 2–3, 6, 16–17, 19, 39, 55, 135, 149 Vietnam 73, 210–211, 217 Vilcabamba River 179, 214 vines 50, 58, 141 Whanganui River 25 wheat 81 Wikimedia 104–106, 111, 117, 119 wild plants 2, 32, 51, 53, 80, 88, 130, 184 World Intellectual Property Organization (WIPO) 46, 159 World Trade Organization (WTO) 5, 62, 116, 120 Yachay ix, 4, 112, 115 zoocentrism 22